Twitter, E-Discovery and Decontextualization

There’s a piece by Debra Logan on the Gartner Blog Network, “Twitter and e-Discovery,” that goes over some fairly straightforward stuff about e-discovery and social media. What struck me as interesting was an observation at the end of the piece, pointing out that because of the briefness of a tweet, it is more likely decontextualized than are other discoverable utterances (doodles on pads at meetings?), at least when it’s looked at outside the flow it first appeared in. It’s context that gives or controls meaning, and the briefer the utterance the less each word is shaped by neighbouring words, near and far. So it could be difficult to explain, and prove, what was meant by an elderly tweet, and, correspondingly, easier for someone to place a construction on it that the twitterer never intended. It’s a little like overhearing a snatch of conversation as you stroll down the sidewalk: you puzzle and play with the bit you’ve understood.

Of course, this is nothing new. Emails and text messages can be brief. What makes it a little interesting, I think, is the deliberate structure of Twitter that assures, in effect, that bits of language will be floating free of context. The problem, to the extent that it is a problem, is built in to the medium. This is what makes Twitter fun, I guess: the more text/context there is, the “heavier” the thought, and heavy is… well, boring to many if not most. (It’s also why people sometimes “serial tweet” in order to provide real meaning to what they’ve said by “violating” the 140 character limitation in a bunch of sequential tweets.)

Paradoxically, perhaps, the briefer utterances are likely to endure longer than the, well, longer utterances. Tweets stick around, because they’re located on Twitter’s servers. You can delete them, but no one does. And it’s impossible to imagine requiring or asking someone to delete tweets as a routine matter. In this they differ from emails, which can be subject to a deletion policy, if there is one as part of an organization’s e-discovery policy.

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  1. I suppose it is always better to err on the side of caution. In this case however I think there would be significantly greater hurdles to overcome to get tweets admitted into evidence than there are for emails. My guess is that the odds of getting a tweet admitted into evidence that was made by outside counsel and stored only on Twitter’s servers would be pretty darned small.

  2. Another interesting issue about Tweets is the fact that they often hyperlink to outside content on websites, blogs or other Tweets (that are not included and could, as you mentioned, be deleted).

    However, going back to the best evidence rule, I think if one were to adduce a tweet in evidence, he would need to prove authenticity by bringing the twitter on the stand. The latter could therefore provide context and it would be up to judge to assess the evidentiary weight the tweet has. Otherwise, I would see tweets as being some sort of e-document hearsay, unless it felt under an exception, such as an enterprise record…

    I do not see tweets as being more problematic than paper to adduce in evidence. We should approach it in the same fashion we would for, say, a post-it that is not related to a document anymore (that happens!).

    Finally, one problem that probably exists with Tweets is, similar to most e-doc, to prove who is behind the username and link the tweet to its real author. One could easily open an account under the name of the opposing party and tweet self-serving evidence. In such circumstances, linking the real author to the post is probably impossible or excessively onerous (getting the IP address of the person who opened the account, etc.)

    I have never heard of a case where Twitter has been subpoenaed and look forward to see, when it happens, if they will bother replying and if they do, how…