Getting Social Media Information in a Civil Case – What are the Duties after a Notice to Preserve?

I have gotten some questions and comments so I would like to follow-up on my post of yesterday on Social Media in Civil Cases.

I welcome your thoughts, this is a complicated and uncertain area.

First, a note about MySpace.  I did some research on MySpace and found its policy to be the same as Facebook’s in terms of providing content in a civil case.  It won’t.

Does Facebook Keep the Data and Can you Get it Back?

I want to make very clear, upon consultation with an expert and a review of Facebook itself that Facebook does not keep deleted data.  There is some dispute among various people with whom I have spoken or read on this issue. This is confusing to be sure.  In the end, to me the best way to resolve this is to look at what Facebook states and go with that.

I think the confusion might arise from the fact that Facebook itself notes that it can take a period of time for deleted data to actually be removed from its servers.

In pertinent part Facebook notes, “When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).”

What does this mean? It means that, much like when you take out the trash, when something is deleted it goes in the trash bin, but it might be a week or so before the dump truck comes by and picks it up.

It also means once something is deleted you can’t get it back.

Deactivation versus Deletion

I noted yesterday that Facebook states it is willing to restore an Account should that be an issue in a civil case.  What this means is that if someone has deactivated an Account Facebook can restore it to as it was when the individual deactivated the Account.

If an individual deletes information from the Account and then deactivates it, Facebook will not be able to restore the deleted data.

It is possible to completely delete a Facebook Account as opposed to deactivate it, but the steps are more difficult and Facebook recommends deactivation.

Here is information from Facebook on Account deletion.

Notice to Preserve

Since deleted data is gone, it is crucial to provide notice to preserve immediately when it comes to social media sites.

But what duties does counsel have in terms of preservation?  Does preservation include telling the client not to delete or alter anything (including privacy settings?)

Does the duty to preserve mean the Account holder is not allowed to do anything at all with his account, or that he has to download all the data at that point, as able to do through the download tool on Facebook?

I don’t know.  The answer isn’t clear yet.

I do know it is important to talk to your client about not deleting data already contained within the account.  I would also talk to my client about not posting on the account at all to avoid doing any further damage with contrary information (i.e. suing because he cannot leave home while posting pictures about the great party he attended.)

On the other hand, I would make it clear to my client not to try to friend the opposing side under false pretenses or engage in an inappropriate investigation.

But this is all up in the air and will be for some time.

What do you think?

What are the obligations of counsel once a notice to preserve has been received?

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