In eDiscovery practice, nearly every set of interrogatories, and document requests, reference emails and their attachments, as well as electronically stored information (ESI) and documents. But what about the volumes of social media posts, that often represent the authors’ actions, words, subject matter knowledge, personality, hobbies, opinions, and physical & mental circumstances?
Isn’t discovery the procedural means to identify those very elements, and see how they may fit into the claims/defenses of a case, in the ultimate pursuit of justice? Are there any more actual, current expressions of one’s present and past individualities? I submit to you, there are not.
Regularly, discovery requests and interrogatories reflect the potentially responsive data that goes to the heart of the claims/defenses, yet seldom inquire as to social media relevance – let alone, a litigation hold that specifically addresses social media accounts and their preservation.
Social media posts matter, and they need to be considered during all eDiscovery litigation.
Today, a single post (text, photo, video, etc.) can say a thousand words – more telling, perhaps, than a voluminous set of answered-interrogatories, or hours of deposition examination, in many cases. These ever so fast moving, cloud-based personal yet public outlets, attract the use of over 74% of online adults – everyday.*
So why is counsel so hesitant to request social media during discovery? Perhaps, they are not sure as to the process and/or costs involved in capturing social media? Fortunately, there are efficient, cost effective ways to identify, preserve, capture, export and produce social media account information, and use the findings in the pursuit of justice.
Identify Prominent Accounts
First, identify any/all social media account(s) that may have been used to communicate information pertaining to the litigation. And while there is an inherent requirement for the preservation of data that may be responsive to a case at bar, it doesn’t hurt to remind your adversary within the appropriate pleadings or during proceedings. We must fight the urge to request all account posts, as the reasonable request must continue to abide by rules of procedure and pass proportionality-muster of the court.
This is accomplished by one of two ways:
- Ask the party about their social media presence within interrogatories and/or other discovery practices.
- Have pre-existing knowledge as to what key accounts are being used, by way of initial investigation of public profile availability.
Eliminate the Clutter
Next, you will want to limit the social media posts, photos, videos, etc., by searching for keywords or phrases, date parameters and other metadata, that touch/concern the case at bar. This means of culling should be just as easy as your attempt to have an isolated and culled set of ESI, emails and attachments, produced during discovery. You will not be provided with many, if any, account credentials, so your social media discovery will be based on public-facing profiles, and posts that are not password protected.
Process Your Data
Finally, decide the format in which you will want the social media eDiscovery produced. Today, social media collections can easily be exported as load files, and imported into a database management solution. In the alternative, and when convenient to the discovery process, social media captures can be searched and organized within the capturing platform, and produced as images/PDFs, and simply forwarded by link, media or other file transfers.
Attorneys need to consider all avenues of eDiscovery and, today, there may be no more relevant source of discovery as social media accounts’ posts, photos and videos. When you combine the efficient means, very much in-line with other collection and preservation methods for ESI, with that of the reasonable cost of capturing social media (when weighed against the exposure of the case); it is a proportionality decision to be made by attorney firms and their clients. For social media collections, eDiscovery, or any other litigation support service, contact us on our website or by phone for a free consultation.
*Citation: Pew Research Center
