Social media is becoming more frequently collected and searched in eDiscovery. As the last election cycle made abundantly clear, social media is currently an influential, indispensable part of American life. We will begin this series by exploring the legal challenges posed by social media in life and discovery, including sources, data, preservation, and more.
Social media platforms typically incorporate multiple forms of media and communication together. Each social media account for each individual user can contain hundreds or thousands of pages of materials in a mishmash of formats. Vast amounts of social media ESI can be collected through eDiscovery, including all files and associated metadata. There are usually a variety of options for the acquisition of social media evidence for use in litigation. The most basic is printing out the material or capturing a screen image of it. This has the advantages of being fast, simple, and cheap, but it comes with significant drawbacks.
While the publicly-shared materials on social media services can be collected directly by any party, the non-public data in those user accounts can only be obtained through discovery. When traditional requests for direct scope negotiations fail, parties must try to work with alternative legal mechanisms within social media discovery. These have included In Camera Review, Password Requests, and Service Provider Subpoenas.
In order for any of the materials you have preserved and collected to be usable at trial, they will have to be admitted as evidence. When it comes to successfully admitting social media as evidence, the materials must be both authentic and admissible. The admissibility of the evidence looks at its relevance, possibility of prejudice, and status of hearsay. Likewise, a witness with knowledge providing authenticating testimony and considering distinctive characteristics of evidence are examples of ways to establish authenticity.
When looking at the authentication of social media evidence in the courts, we can focus on cases from Maryland and Texas. These were two of the first states to address these issues at the appellate level, and each staked out a different position that has since been followed by other states. The Maryland Rule embodies the fear of “voodoo information,” requiring a better demonstration of authenticity before the evidence can reach the jury, while the Texas Rule entrusts the disputed fact conclusions to the jury. The two approaches taken reflect the tension we reviewed in the previous part, between permissive rules and fearful judges.
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 – growth of more than 50% over the prior year. The rise in the presence of social media in the courts has led to preservation and spoliation concerns. Social media evidence is more frequently being treated as a standard source–if relevant, it must be preserved and produced and not altered, deleted, or hidden. It is clear from the six cases covered in this article that, while parties and their attorneys may be struggling with social media, courts are very comfortable treating it like any other source of evidence: if relevant, it needs to be preserved and produced; and, under no circumstances should it be intentionally altered, deleted, or hidden.
In addition to the obvious need to not to intentionally spoliate or advise spoliation, the rise in the use of social media as evidence has developed ethics and reliability concerns for attorneys. Consequently, this rise in importance has led to additional questions that state bars have begun to address. Concerns are raised in the reliability of social media data gathered, as the Internet has seen a massive surge in deliberately fake content. Some of it is intended only to entertain or advertise or get attention, but some of it is intended to sow confusion and misinformation.
This multi-part series on how to overcome the technical and legal challenges raised by the involvement of social media sources and data in electronic discovery ends with a summary and set of key takeaways. This includes covering social media sources of ESI, the acquisition, authentication, spoliation, reliability of evidence and the ethical concerns therein.