With the widespread use of social media, litigators should consider whether relevant electronically stored information (ESI) may be obtained through discovery. Roughly two-thirds of U.S. adults report that they are Facebook users, and roughly three-quarters of those users access Facebook on a daily basis. Social media posts may contain communications, photographs, videos, and location information that are relevant to an action. Often, social media platforms have privacy setting that allow users to restrict access to their content to only friends or followers authorized by the user, however, in some instances, social media postings are viewable by the public at large. To ensure that all relevant information is requested, follow these steps during your social media eDiscovery process.
Step 1: Identify Prominent Accounts
First, identify any/all social media account(s) that may have been used to communicate information pertaining to the litigation. Generally, this is accomplished by one of two ways. First, you may wish to engage in an initial investigation of publicly accessible accounts before or during discovery. This may be difficult if accounts have privacy restrictions, but often you can identify whether a party has an account on a social media platform even if you cannot access the contents of their profile. And in some instances, an account will have a wealth of publicly accessible information. Second, you can ask party about their social media presence within interrogatories and/or other discovery practices. Typically, you will want to limit inquires to social media use during time frames that are relevant to the litigation. The initial goal of such questions is to identify a social media account that might have relevant information.
Step 2: Eliminate the Clutter
Both during an initial investigation and during discovery, it is important to eliminate the clutter in the vast amounts of posts and information on social media accounts. As always, reasonable discovery request must abide by rules of procedure and pass proportionality-muster of the court. Thus, it is essential to limit the scope of social media discovery, because it is very unlikely that the entirety of a party’s social media accounts will be discoverable.
Thus, during an initial investigation, 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.
Additionally, in interrogatories or depositions, it is useful to ask questions targeted at specific information that may be relevant to any action. For example, ask the party about photographs with specific individuals or doing certain activities that may be relevant to the lawsuit. Ask the party about specific topics that might be the subject of social media posts. Or, ask for communications with specific people that might be contained on social media.
Step 3: Preserve the Data
In addition to general spoliation obligations, Federal Rule of Civil Procedure 37(e) specifically requires the preservation of ESI both during and in anticipation of litigation. Nevertheless, it wise to remind your adversary of the obligation either through pleadings or other communication. In cases where spoliation of social media information may have occurred, it may be necessary to seek court intervention. Additionally, in cases in which initial investigations have uncovered publicly available data, it is useful to preserve that information by taking screenshots as a point of reference to present to your litigation-support vendor, who will eventually collect the data with forensic-tools. This should include any “high-interest” posts or other data, in case a party either deletes the data or changes their privacy settings throughout the litigation. Likewise, ensure your own client understands the duty to preserve all potentially relevant ESI and does not delete posts from their social media accounts.
Step 4: Collect Data
Finally, you should engage a litigation-support team to properly image/collect the social media, and maintain all metadata when possible. Litigation-support professionals, trained in social media collection, can even monitor certain accounts for newly posted/deleted items. Eventually, you will 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.
Case Example
Thurmond v. Bowman, No. 14-CV-6465 (W.D.N.Y. Mar. 31, 2016) shows how the above discussed steps might occur in the course of a litigation. In Thurmond, the plaintiff alleged that the defendants had violated the Fair Housing Act, causing her to remain homeless, become separated from daughter, and suffer emotional distress. In any initial investigation, the defendants had identified social media posts (photos of the woman with her daughter, posts about living with an aunt, etc.) that on Facebook, Instagram, and Twitter they alleged undermined the plaintiff’s claims. They took screenshots of some, but not all, of these posts. In an email communication regarding settlement, the defendants’ attorney reminded plaintiff’s attorney of the duty to preserve ESI, which the attorney relayed to the plaintiff.
The defendants’ continued to monitor the plaintiff’s accounts and soon suspected that the plaintiff was deleting posts. Eventually, the defendants obtained (with the plaintiff’s consent) orders prohibiting the plaintiff from modifying her social media accounts in any way or from deleting any posts during the period in question. Nonetheless, the defendants believed that the plaintiff had deleted relevant posts and moved for sanctions based on spoliation.
During the adjudication of the motion, the plaintiff provided the defendant and the court with printouts of all posts from all accounts during the period in question. After cross checking these printouts with their earlier screenshots, the defendants identified three posts that were missing. Nonetheless, the court ruled that the defendants had presented insufficient evidence to support that the plaintiff had engaged in the widespread deletion of relevant information, as the defendants had alleged. Further, the court found that the defendant had failed to establish that three posts that were missing were relevant, as the three posts were similar to many other printouts that had been provided by the plaintiff. The court rejected the premise that all of the plaintiff’s social media posts were relevant. Thus, the court declined to impose any sanctions.
In this case, the defendants may have been better served to engage a litigation-support vendor, to preserve all of the posts from their initial investigation, to help meet their burden of establishing evidence spoliation. Further, the defendants could have better framed their discovery requests in a manner that was proportional to the needs of the case. Even though the plaintiff prevailed on this motion, the court also admonished the plaintiff that she had violated its preservation orders by changing the privacy setting on her Instagram account and hiding a few posts from her Facebook timeline after the entry of the orders.
For help identifying, requesting, and preserving social media data, litigators may wish to consult an eDiscovery support professional. LITeGATION is an award winning litigation support team with proven results in social media data-collections. Contact us today.
