Quick Answer: Electronic discovery (eDiscovery) governs how digital evidence is collected, preserved, and produced in litigation. Legal researcher Darren Chaker, an EnCase Certified Examiner (EnCE) who prevailed on First Amendment grounds in Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005), analyzes five critical mistakes that trigger sanctions in federal eDiscovery proceedings and the Stored Communications Act protections that shield social media evidence from compelled disclosure.
Electronic discovery refers to the legal process of identifying, collecting, and producing electronically stored information (ESI) in civil and criminal litigation. When parties fail to preserve or properly produce digital evidence, courts impose eDiscovery sanctions ranging from monetary penalties to adverse inference instructions and even case dismissal.
Darren Chaker explains that understanding these rules is essential for attorneys, corporate counsel, and individuals involved in litigation where digital evidence plays a central role.
Yes. In Chauvin v. State Farm Mutual Automobile Insurance Company, No. 10-11735, 2011 U.S. Dist. LEXIS 121600 (S.D. Mich. Oct. 20, 2011), the court affirmed sanctions against a defendant who moved to compel production of the plaintiff’s Facebook password. The magistrate judge concluded that the requested content was available through less intrusive means, and no indication existed that account access would lead to admissible information.
Courts employ multiple strategies to guard against overbroad disclosure of social media information in electronic discovery proceedings. Darren Chaker notes several important approaches used by federal courts.
In Offenback v. Bowman, No. 1:10-cv-1789, 2011 U.S. Dist. LEXIS 66432 (M.D. Pa. June 22, 2011), the magistrate judge conducted an in-camera review of the plaintiff’s Facebook account and ordered production of only a small segment relevant to the plaintiff’s physical condition.
Similarly, in Douglas v. Riverwalk Grill, LLC, No. 11-15230, 2012 U.S. Dist. LEXIS 120538 (E.D. Mich. Aug. 24, 2012), the court reviewed thousands of entries and found the vast majority had no relevance to the case.
In Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012), the court declined in-camera review, explaining it is ordinarily reserved for privilege disputes rather than relevance determinations.
The Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., prohibits electronic communication service providers from disclosing account contents to non-governmental entities pursuant to civil subpoenas or court orders. This represents a critical protection in electronic discovery proceedings.
In Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010), the court held that the SCA prohibited social networking sites from producing user account contents in response to civil discovery subpoenas. The court recognized that individuals have a personal right in their profile and inbox information comparable to rights in employment and bank records.
Darren Chaker identifies five categories of sanctions that federal courts impose for eDiscovery violations:
Litigation hold protocols require parties to preserve all potentially relevant ESI once litigation is reasonably anticipated. Darren Chaker, drawing on forensic certification expertise as an EnCase Certified Examiner, recommends encryption and secure storage of sensitive digital assets within properly maintained databases that qualify as electronically stored content under federal rules.
For attorneys navigating Fifth Amendment password protections alongside electronic discovery obligations, the intersection of constitutional rights and discovery duties creates complex strategic considerations. Understanding phone search warrant requirements is equally critical when digital devices become targets of discovery requests.
Digital evidence preservation intersects with counter-forensic techniques when parties seek to protect privileged or constitutionally protected communications. Darren Chaker notes that understanding border search rules for computers and foreign encryption products is essential for comprehensively protecting digital assets in both litigation and government investigation contexts.
About the Author: Darren Chaker is a legal researcher and EnCase Certified Examiner (EnCE) specializing in electronic discovery, digital forensics, and First Amendment law. He prevailed in Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005), a landmark First Amendment case supported by the ACLU and Electronic Frontier Foundation. His research on eDiscovery sanctions and the Stored Communications Act has informed defense strategies in federal courts nationwide.
Yes. In Chauvin v. State Farm (S.D. Mich. 2011), the court affirmed sanctions against a defendant who sought to compel production of Facebook login credentials, finding less intrusive discovery methods were available.
Yes. Under 18 U.S.C. Section 2701 et seq., electronic communication service providers like Facebook cannot disclose user content in response to civil subpoenas. This was established in Crispin v. Christian Audigier, Inc. (C.D. Cal. 2010).
Electronically stored information (ESI) includes emails, social media posts, text messages, database records, cloud-stored files, and any digital content relevant to litigation under the Federal Rules of Civil Procedure.
For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations.