A multi-part series on the technical and legal challenges raised by the involvement of social media sources and data in electronic discovery and how to overcome them
Introduction: Social Media Life
As the last election cycle made abundantly clear, social media is currently an influential, indispensable part of American life. And, as it worms its way ever deeper into our relationships, our professional activities, and our culture as a whole, its impact on discovery is growing as well:
- “It is important that counsel become familiar with their clients’ information systems and digital data — including social media — to address these issues” [emphasis added]
- An August 2016 review by X1 uncovered more than 9,500 cases from the preceding 12 months in which social media evidence played a significant role
- “This represents over a 50 percent increase from 2015” [emphasis added]
- In a recently published ILTA survey, 77% of responding law firms said they had handled cases involving the collection and processing of social media data in the past year, and more than half of those firms reported social media data being implicated in 4 or more matters during the year
- Overall, this is “a 12 percent increase over 2015” and “a 23 percent increase in firms handling at least 4 matters per year involving social media evidence” [emphasis added]
Unfortunately, the nature, diversity, and volume of social media data present a variety of challenges for practitioners, both technical and legal. In this multi-part blog series, we will explore some of those challenges and the ways they can be met. Questions we will touch on include:
- What sources are there?
- What data do they actually have?
- How can it be preserved and collected?
- How can it be authenticated for admission as evidence?
- What other issues does it raise?
We begin our exploration in this first Part with an overview of the major social media sources you are likely to encounter.
Social Media Sources
Although there are numerous social media services and applications, the vast majority of use activity is centered on five services: Facebook, Instagram, Pinterest, LinkedIn, and Twitter. Pew Research Center’s 2016 Social Media Update reveals that, as of spring 2016, “68% of all U.S. adults are Facebook users, while 28% use Instagram, 26% use Pinterest, 25% use LinkedIn and 21% use Twitter” [emphasis added]. Additionally, 56% of online adults use two or more of these five services.
These five services – Facebook in particular – will be your most likely social media sources:
- Social networking site on which users create personal profiles, add friends, send messages, post status updates, share media and links, chat with others, join groups, and more
- Primary use: personal social networking
- “Roughly three-quarters (76%) of Facebook users report that they visit the site daily (55% visit several times a day, and 22% visit about once per day).”
- Social networking site focused on sharing and commenting on users’ photos and videos
- Primary use: sharing personal photos
- “Instagram use is especially high among younger adults. Roughly six-in-ten online adults ages 18-29 (59%) use Instagram, nearly double the share among 30- to 49-year-olds (33%) and more than seven times the share among those 65 and older (8%).”
- Social networking site focused on creating and sharing “pinboards” of favorite or themed images and videos, both uploaded and collected from the Internet
- Primary use: aggregating themed images (e.g., event decoration ideas)
- “Continuing a long-standing trend, women use Pinterest at much higher rates than men. Nearly half of online women use the virtual pinboard (45%), more than double the share of online men (17%) who do so.”
- Social networking site focused on professional networking and job seeking, with profiles akin to curricula vitae and a variety of industry-specific groups to join
- Primary use: professional networking, job seeking
- “LinkedIn has long been especially popular with college graduates and high income earners, and this trend continues to hold true.”
- Social networking site focused on rapid, chronological sharing of brief messages called “tweets,” each of which is no more than 140 characters in length
- Primary use: real-time commentary and discussion, current events
- “Twitter is also somewhat more popular among the highly educated: 29% of internet users with college degrees use Twitter, compared with 20% of those with high school degrees or less.”
In addition to these five primary services, there are a wide variety of (much) smaller social media services competing for users. Some are very similar to the majors (e.g., Google+), while others have carved out small, distinct niches of their own with different features or focuses (e.g., Snapchat, Reddit, or Tumblr).
Additionally, an increasing number of smartphone owners (72% of American adults) are also adopting the use of new messaging applications as an alternative to text messages or messaging through one of the major social media services. These applications come in both general purpose (e.g., WhatsApp) and auto-deleting (e.g. Wickr) varieties, and they are much more popular among the young, suggesting a major shift in sources may be coming in the future:
Some 56% of smartphone owners ages 18 to 29 use auto-delete apps, more than four times the share among those 30-49 (13%) and six times the share among those 50 or older (9%). Similarly, 42% of smartphone owners ages 18 to 29 use more general messaging apps like WhatsApp or Kik, compared with 19% of smartphone owners ages 50 or older.
Upcoming in this Series
In the next part of this series, “What Social Media ESI Can Be Collected in eDiscovery,” we will go into more technical detail about the materials available from these kinds of sources, and we will begin our review of the available options for preservation and collection of those materials.