Preservation Orders & First Amendment Rights on Social Networking Sites

In a case originally filed in California State Court, a Plaintiff brought a civil rights action against Facebook for alleged First and Fourteenth Amendment violations.  The Defendant removed the case to Federal Court.  Young v. Facebook, Inc., 2010 U.S. Dist. LEXIS 98261, at *1-2 (N.D. Cal. Sept. 13, 2010).

The Plaintiff sought a preservation order against the Defendants.  Young, at *2.

Judge Fogel summarized general preservation obligations in Federal Court, according to 9th Circuit precedent:

Parties to a civil action in federal court are under a duty to preserve evidence that they know is relevant or reasonably could lead to the discovery of admissible evidence. Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006). This obligation, backed by the court’s power to impose sanctions for the destruction of such evidence, is sufficient in most cases to secure the preservation of relevant evidence. Before additional measures to preserve evidence are implemented, there must be some showing that there is reason for the court to be concerned that potentially relevant evidence is not being preserved and that the opposing party may be harmed as a result. Jardin v. Datallegro, Inc., No. 08-cv-1462, 2008 U.S. Dist. LEXIS 67575 at *1, *2 (S.D. Cal. Sept. 3, 2008).

Young, at *2.

The Court found the Plaintiff did not demonstrate any “extraordinary” reasons that a preservation order was needed to prevent the destruction of evidence.  Young, at *2-3. The Court did not close the door on discovery sanctions if needed later in the case. However, issuing a preservation order was premature.  Young, at *3. 

In deciding another issue, the Court noted that the Plaintiff’s complaint seemed to be without merit, because a civil rights claim requires government action.  Young, at *3-4.  In short, Facebook is not the United States government.

Bow Tie Thoughts

The issue of preservation on social networking sites should give parties pause.  If a “Tweet” is an issue, is the best method of preservation simply printing the “Tweet”?  Would a screen capture be enough?  Or should a party send a request to Twitter? 

There are new “cloud” preservation tools on the market that will help shape these standards.  One such new tool is Convogence.  This tool is aimed at companies using social media for marketing and can be used for compliance with a records retention policy for data outside of a company’s firewall.  Other products are also on the market and this area of cloud preservation will continue to mature.

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