The first post in this three part series on practical issues in social media eDiscovery covered challenges in identification and preservation. This entry looks at collection challenges created by the distinctive interactive nature of social media.
One of the striking features of social media is the many different data types found in one account or even one post. A single Facebook post might include:
- Original post made by the account holder or a “friend”
- Embedded graphics and videos
- Likes, comments and shares
- Links to other content on Facebook
- Links to content on competing social media sites or third-party websites
- Metadata (e.g., timestamps showing when content was added)
In short, social media content is dissimilar, complex and stored in multiple locations. This diversity of content creates technical hurdles to collection.
Best practice is forensic collection by a qualified service provider
The best practice for meeting these collection challenges is to partner with a digital forensics service provider. A qualified provider will provide competent advice on technology issues and options.
In addition, providers use forensic software developed specifically for social media collections. This is critical for three reasons.
First, social media forensic software is purpose built to collect all types of social media content, including multimedia files and metadata. Date- and time-stamps are especially important in this context because the date and time that a social media post was created may be as important as the content.
Second, forensic software has the capability to follow links and collect the linked content, even if it is found on a third-party website. This is essential for a comprehensive collection.
Finally, social media forensic collection software uses hash value verification, the industry standard means of validating that the collection is a complete and accurate copy of the original. Forensic validation has taken on new importance in light of the amendments to Federal Rule of Evidence 902, effective December 1, 2017. Amended Rule 902 creates a procedure for authenticating digital evidence by means of a written certification based on hash value verification. My post Social Media Discovery: Legal and Ethical Considerations discusses the importance of new section 902(14) for social media collection.
Self-collection has significant drawbacks
There are two self-collection alternatives to using forensic software. The obvious advantage of self-collection is its low price tag; however, self-collection of social media has very significant limitations. In most matters, the risks of self-collection will significantly outweigh the immediate cost-savings.
The first self-collection method is an account download. Some platforms, including Facebook and Twitter, offer a “download my account” feature that permits account holders to request downloadable versions of their accounts from the social media provider. A user (or authorized proxy) must be logged in to request a download.
The second self-collection method is screen captures. Screen captures are typically used when the download option is unavailable, either because the platform doesn’t support it or the party making the collection doesn’t have login access.
Both self-collection methods have inherent technical limitations resulting in incomplete collection. The downloadable version of the social media account prepared by the provider does not include linked content on other sites, and indeed may not even include all available information from the account itself. Screen captures are even more limited since they are unable to capture native versions of multimedia files or metadata. Lastly, neither self-collection method is forensically validated.
Despite these significant drawbacks, self-collection may be appropriate in some cases under a proportionality analysis. The analysis should weigh the relevance and importance of the social media evidence in light of the issues, as well as the cost of the collection in light of the value of the case. Lawyers evaluating self-collection as an option should consider seeking prior agreement from opposing counsel in order to forestall challenges to the sufficiency of the collection.
Social media eDiscovery doesn’t stop with collection. The final post in this series will review options for review and production of social media, and in particular, the document review challenges created by social media’s informality.
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.