The first two posts in this series discussed practical challenges in identifying, preserving and collecting social media evidence. This third and final installment covers social media review challenges. The informality of social media requires a different approach to analysis and review than standard ESI.
One of these things is not like the other
Standard eDiscovery tools and workflows are designed for business documents. Business documents are self-contained (i.e., all the content is contained in a single electronic file). They are typically at least a paragraph or longer in length. Business writing is characterized by complete sentences, proper grammar and correct spelling and punctuation. It uses a small universe of widely recognized symbols, most found on the qwerty keyboard.
Social media is unlike business documents in pretty much every way. It’s characterized by:
- Very short text
- Insider lingo
To make matters worse, social media acronyms, abbreviations, insider lingo and emojis are continually developing, carry multiple meanings and/or are used to mean different things by different people. Complicating the situation even further, emojis are platform-dependent; this means that the same emoji may look completely different – literally – when viewed on two different devices. For more on emojis in litigation, see this Inside Counsel article.
Social media review options
The first step in social media review is choosing the best tool for the matter.
Depending on the needs of the case, it may make sense to review social media evidence in an off-line copy created by forensic collection software. An off-line copy mimics the format of the social media platform for easy browsing and general assessment of the type and tone of the content.
In other cases, the best approach will be to load the collection data into an eDiscovery review tool like Relativity or Viewpoint. This allows the social media evidence to be searched and reviewed in the overall context of the ESI collected or produced in the case. It also supports more features for production, including privilege review and redaction.
These options can be used in sequence for a first look followed by a deep dive review.
Keyword searching is limited but still useful
Keyword searching is many lawyers’ default starting point for eDiscovery review; however, it’s not necessarily a viable option with social media for technical reasons. Electronic files are indexed during eDiscovery processing to make them text-searchable. There is a threshold text requirement for indexing. Some social media content does not have enough text to meet this requirement.
Moreover it’s difficult to formulate effective keyword searches for social media. The text content of social media very often simply does not lend itself to word searches. Many social media posts replace words with graphics, symbols or links. Non-standard English is commonplace.
However, as long as these significant limitations are recognized, keyword searches can still be useful. An example is names of individuals and companies, which are important search terms in most matters. Unlike other social media content, names are likely to be written out in full and spelled correctly.
Combine filtering and analytics with other review techniques
Another useful standard review technique is filtering. Filtering is a simple technique to create a review set based on limiting criteria such as date range and file type. For instance, photos are critical social media evidence in many employment and personal injury cases. Filtering is a quick and easy way to focus social media review on the file types typically used by digital cameras and smartphone cameras.
Social media is on the leading edge of eDiscovery and review strategy is still developing. One promising use of analytics is loading the social media collection into Relativity and applying clustering. Clustering is an analytics tool that groups conceptually related records in the review database. It’s proved effective with text messages, which have many textual similarities to social media content.
The greatest challenge in social media review for many lawyers will be adopting a mindset that words are relatively unimportant. The informal, non-text based content of social media requires creative approaches to analysis and review. In many instances, it will also require old school linear (i.e., record-by-record) review.
Social media’s distinctive characteristics create a number of practical challenges in discovery from identification through review. Lawyers will be successful in navigating this shifting and unfamiliar landscape if they understand how social media is different from traditional data sources and the eDiscovery implications of those differences.
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.