eDiscovery costs soar to $90,000 in Social Media Evidence Case

The recent tort case of Federico v. Lincoln Military House (regarding mould and related injuries in a military housing facility) discussed the Proportionality of social media content to be disclosed during Discovery - and highlighted the cost of unnecessary expert analysis.

In finding that certain social media evidence was deemed “potentially relevant” to the case, the plaintiff produced a few documents (such as emails and Facebook posts that had been used to document and communicate the ongoing problem) but both the court and defendant’s deemed it insufficient and so a motion to compel discovery of social media data was filed.

The plaintiffs vehemently resisted this motion and argued that they would need the assistance of a forensic expert to effectively gather and preserve the relevant evidence - at an estimated cost of $22,000. Ultimately, most additional social media evidence produced was merely duplicative to what already previously been produced to the courts.

The judiciary found that this time consuming, duplicative and costly exchange illustrated “the difficulty the Court will inevitably face in trying to achieve the proportionality required by Rule 26(b)(2)(C) in electronic discovery of social media.”

The court held, however, that the plaintiff’s inability to produce social media data was reason enough to sanction the final cost of the forensic expert ($29,000) to “deter further noncompliance”, whilst also sanctioning the plaintiff for attorneys fees under Rule 37(a), at an additional cost of $65,000.

This case showed that by failing to preserve and present social media data to the courts in a timely manner, the plaintiffs incurred extortionate and avoidable sanctions of almost $90,000.

Legislation on the Limitations of Social Media Discovery.

The Duty to Disclose (Rule 26(b)(2)(C)) applies to specific limitations on ESI and states that a party does not have to provide ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost.

If a motion to compel discovery is filed, the party from whom it is sought must prove that the information is not reasonably accessible because of undue burden or cost. However, even if proven, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C) and the court may specify conditions for the discovery.

This Federal Rule of Evidence states that in response to a motion, the court must limit the frequency or extent of discovery otherwise allowed if it finds:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering a multitude of factors including the needs of the case, the parties’ resources, the potential controversy, the importance of the issues at stake, and the importance of the discovery in resolving the issues.

Rule 37 also discusses the sanctions associated with failure to make disclosures or to cooperate in response to a motion compelling discovery or the process in general.

Rule 37(a) focuses on specific motions to compel disclosure; if a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions.

The Role of WebPreserver

Legal professionals utilising WebPreserver as an eDiscovery tool limit the avoidable costs and sanctions affiliated with traditional discovery proceedings. This cost-effective, simple archiving technology creates and stores evidence from social media, blogs and websites, essential for litigation support, legal professionals and law enforcement authorities.

With the easy installation of a Plug-in and single-click capture technology, WebPreserver software is un-burdensome in the production and discovery of online evidence. Our software can create snapshots of evidence from any content place in the internet and stores them in PDF and WARC formats for use in litigation - self authenticating and preserving evidence without the need of costly experts.

Our unique features of digital e-signature (in line with the E-Sign Act) and automated time-stamp provide content specific circumstantial evidence to ensure your evidence is admissible in court. A Metadata format of your Snapshot is also stored for additional compliance measures.

Snapshots are instantly created, easily downloaded,  archived and organised. Additional resources include the ability to create and share personal files on our online platform, perfect for efficient sharing with clients and colleagues and easily organised with keyword tagging options minimising research and administrative costs and burdens.