Social media is dynamic, interactive and informal. The very qualities that make social media so attractive to its users create a plethora of practical challenges in eDiscovery. Recognizing social media eDiscovery challenges is the first step to overcoming them, beginning at the initial stages of the EDRM process.
This is the first in a three part series on social media eDiscovery. The next post in this series will cover the technical and practical challenges of social media collection.
Social media’s dynamic nature creates identification and preservation challenges
The dynamic quality of social media creates barriers to identification and preservation that don’t arise with traditional sources of ESI such as computers and email systems. In contrast to those relatively static sources, social media is in a constant state of flux.
Complicating the situation further, there are two distinct categories of social media change. The first is developments by social media providers:
- New platforms and applications are introduced
- Old services and features gain and lose users
- Platform features are added, removed and altered in response to technological developments, market forces and user preferences
The second is changes by consumers:
- People create – and delete – social media content at a dizzying rate of speed
- Social media posts link to third-party websites that are equally impermanent
- Content becomes inaccessible as users change their privacy settings to restrict public access
Identification of relevant social media requires special attention
The key to successful identification of social media ESI is to give it special attention. Most people, including many litigators, just aren’t going to think about the discovery implications of social media without prompting.
Custodian questionnaires and interviews should include targeted questions about social media. Ask if relevant data exists in any social media site, listing the main platforms (Facebook, Twitter, Instagram, Pinterest and LinkedIn). It’s good practice to give specific examples of potentially relevant social media data to assist the custodian, especially if preliminary investigation has already identified some likely sources. Common examples are social media messaging applications used for business purposes, corporate social media content in intellectual property matters and Facebook wall posts and photos in employment cases.
The opposing party’s social media may also be at issue, particularly in employment and personal injury cases. There are several legal tools available to learn about the other side’s discoverable social media. These include discovery letters following up on initial disclosures, raising social media in the discovery conference and asking about it in interrogatories.
In addition, it can be helpful to perform internet searches of publicly available social media content. These searches may themselves locate relevant data, or they may supply information needed to make a threshold showing of relevance necessary to obtain discovery of non-public data. My post Social Media Discovery: Legal and Ethical Considerations covers this and related topics in more depth.
Act quickly to preserve social media
The key to preserving social media is to act quickly before it changes – or disappears.
Most types of ESI can be defensibly preserved in place with a properly managed litigation hold. Social media is different. Not only is it constantly changing, many of the changes are actually outside the social media user’s control (e.g., social media provider removing content features).
Accordingly, best practice is to make a preservation collection. A preservation collection creates a static, off-line copy of the social media content. Typically the entire user account is captured for a preservation collection; however, a targeted capture may be made of relevant data in order to exclude non-relevant, private information from the scope of collection. Supplemental preservation collections may be made to capture relevant content created on an ongoing basis.
If there is any risk that the social media user will alter content, whether intentionally or out of a negligent failure to preserve, then a preservation collection is absolutely critical, for obvious reasons.
Social media is dynamic by nature. The best strategy for meeting the eDiscovery challenges of identifying and preserving social media evidence is to act quickly.
Helen Geib is General Counsel and Practice Support Consultant for QDiscovery. Prior to joining QDiscovery, Helen practiced law in the intellectual property litigation department of Barnes and Thornburg’s Indianapolis office where her responsibilities included managing large scale discovery and motion practice. She brings that experience and perspective to her work as an eDiscovery consultant. She also provides trial consulting services in civil and criminal cases. Helen has published articles on topics in eDiscovery and trial technology. She is a member of the bar of the State of Indiana and the US District Court for the Southern District of Indiana and a registered patent attorney.
This post is for general informational and educational purposes only. It is not intended as legal advice or to substitute for legal counsel, and does not create an attorney-client privilege.