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Social Media Data Preservation

By Diana Fasching, Staci Kaliner and Tamara Karel
July 30, 2012

Social media is no longer a new phenomenon. Yet, the development of business rules governing the long-term retention of social media content in the ordinary course of business as well as the legal precedent governing the preservation of social media for litigation remain in their infancy. (For convenience, we will refer to the concept of saving social media for both purposes as 'preservation.')

Businesses are only now beginning to explore the value and need to retain their social media interactions. Courts are likewise just starting to assess the interplay of privacy rights and regulatory laws, authentication of social media data, the waiver of privileges, and issues related to the preservation and collection of social media. See, Romano v. Steelcase, Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010) (privacy); EEOC v. Simply Storage Management LLC, 270 F.R.D. 430 (S.D. Ind. 2010) (privacy); Cripsin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (C.D. Cal. 2010) (regulatory laws); Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007) (authentication); Griffin v. State of Maryland, 419 Md. 343 (Md. 2011) (authentication); Ledbetter v. Wal-Mart Stores, 2009 WL 1067018 (D. Colo. Apr. 21, 2009) (waiver); Tener v. Cremer, 2011 N.Y. slip op. 6543 (N.Y. App. Div. Sept. 22, 2011) (accessibility).

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