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
Key Takeaways
On Sources and Usage:
Without question, social media is now used frequently and by the majority of people in the United States. It is also showing up in more and more cases as evidence each year. The most commonly used (and, therefore, implicated) social media platforms are Facebook, Instagram, Pinterest, LinkedIn, and Twitter. Facebook usage is roughly triple the usage of each of the other four and is implicated the most often.
On Available ESI and its Acquisition:
Collectively, social media users generate enormous numbers of posts, photos, and other content each day, and each individual account can contain large quantities of material, in many formats, including both native and platform metadata. Additionally, service providers typically keep IP logs and other records. Self-help collection options are extremely limited, but they are okay in some situations (e.g., internal investigations, cases with no authenticity dispute). Custom tools and services are available for when more complete collection or more robust post-collection options are needed.
On Legal Mechanisms for Acquisition:
Social media evidence is discoverable, like all evidence, when it is relevant. Disputes over the scope of relevance may be resolved through in camera review by the judge, though not all judges will. Overbroad requests are disfavored and likely to be limited by the judge, and discovery of passwords for unlimited access is strongly disfavored and very likely to be disallowed. Because of the Stored Communications Act, subpoenas to obtain materials directly from the social media service providers are unlikely to work.
On Authentication in the Rules and Courts:
Like all evidence, social media evidence must be authentic to be relevant and admitted. Social media is most often authenticated through the testimony of someone with knowledge and through the distinctive characteristics of the materials offered. When authenticity is disputed, jurisdictions are split between the Texas Rule, which just requires a prima facie showing to reach the jury, and the Maryland Rule, which requires a special, higher showing for social media evidence to reach the jury. The Texas Rule is currently the more-widely adopted of the two, though many jurisdictions have yet to weigh in.
On Spoliation:
Attorneys and their clients may be struggling to treat social media like other source types, but judges are not. If it’s relevant, it needs to be preserved, and your clients need to be advised of that fact explicitly. If it’s lost, even unintentionally, sanctions may follow.
On Ethical Concerns:
As a communication medium, social media is subject to the same rules for attorneys as the other available media: no bothering represented parties; no bothering unrepresented parties without disclosure; and, no deceptive or fraudulent communications.
On Reliability Concerns:
For our purposes, truly fabricated materials are not a likely issue, but individuals’ tendency to portray themselves in the best light possible makes the materials’ utility for discerning mental or emotional states questionable. Take them with a grain of salt.
On-Demand Webinar
On Wednesday, June 21st, XDD presented a free a live webinar on this subject – in conjunction with ACEDS – called “Gone Viral – Social Media in eDiscovery.” This one-hour program surveyed the range of issues raised by social media in eDiscovery, including:
- 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?
A recording of the program, including the Q&A that followed, is available for free by completing the download form here: https://www.xactdatadiscovery.com/webinars-on-demand/.
For More Information
Xact Data Discovery (XDD) is a leading international provider of eDiscovery, data management and managed review services for law firms and corporations. XDD helps clients optimize their eDiscovery matters by orchestrating pristine communication between people, processes, technology and data. XDD services include forensics, eDiscovery processing, Relativity hosting and managed review.
XDD offers exceptional customer service with a commitment to responsive, transparent and timely communication to ensure clients remain informed throughout the entire discovery life cycle. At XDD, communication is everything – because you need to know. Engage with XDD, we’re ready to listen.
About the Author
Matthew Verga, JD
Director, Education and Content Marketing
Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. A ten-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.
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