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Social Media and eDiscovery: A Checklist for Practitioners

Discovery Digest – Q4 2012

Social media offers significant benefits for organizations, but it presents unique challenges during litigation. In order to properly plan for, collect, and access social media during discovery, lawyers, discovery specialists, and IT staff should consider a range of issues. The checklist below will help to ensure that the legal team collects what it needs in a way that is defensible, practical, and minimizes potential spoliation claims.

Scoping the Collection of Social Media Information

Before jumping in to discovery, the legal team should take some time to consider what types of data may be involved, how much social media may be responsive, and how they will get it.

1. Understand the Breadth of Available Social Media Information

Just like with any type of ESI, evaluating the estimated size of a social media collection involves knowing what information may be available, determining whether that information is potentially relevant, and identifying where to get the information that the team needs.

However, social media can be more complicated to collect and more valuable than other sources of ESI. Social media data can include internal and external links to a site, photos, HTML text, embedded content, videos, other user-created content, and metadata. Part of the complications and added value of social media lies in the unique relationships the data have. These can be grouped into several categories:

  • Profile Pages
    A profile page is one that the user maintains, such as a Facebook or LinkedIn profile page. These types of pages generally include personal identifying information such as a name or user name, pictures, interests, birthday, gender, and residence location. Individuals can choose to link their profile pages with others, such as through the Facebook “friend request” process.
  • Private Messages
    Private messages can be compared to email. However, unlike many email accounts, private messages are stored remotely on a third party’s servers. These messages, which are not usually publicly available, can include pictures, videos, and other types of files.
  • Posts
    Users share information through posts, which can include text, photos, hyperlinks, and other user-created content. Users can create posts on their own walls or the walls of users.
  • Tags
    Tags can be considered in a couple of different ways, either as a sub-category of posts or as interactions that are related to posts. Through tags, users can link to another user or group of users or to an activity or location offline. Depending on a user’s privacy settings, tags may be visible to other users. Tags are similar to metadata, but they are added by a user, not automatically created.
  • Other Types of Public Messages
    Some social media sites use other types of public messaging, which can include blog and micro-blog posts.

Understanding the universe of potentially available information and the relationship between information types is the key to adequately collecting social media information. Starting with a broad universe and narrowing it based on a number of key questions allows for quick, effective scoping of the social media information to be collected.

2. Determine Which Social Media Information Is Potentially Relevant

The courts are increasingly weighing in on how social media can be used as evidence, and social media has been used in a variety of matters, including criminal investigations, employment law claims, false advertising claims, intellectual property infringement, and breach of contract cases.

In order to limit the collection of ESI, the legal team needs to determine the issue of relevancy. Just as with other types of potentially discoverable materials, the relevance of social media will depend on the relationship of the proposed evidence to the defense or claim at issue and the relationship of the subject to the claim or defense.

Use the time before your Rule 26(f) conference to look at publicly available information to determine what types of information a user has posted so that collection of social media evidence is addressed properly during your meet and confer.

Ask key questions regarding both publically available data and information to which access may be restricted:

  • Is the user in question likely to have used privacy settings or likely to update the privacy settings due to litigation?
    - While unlikely, if the answer is no, it might be possible that you could rely on publically available social media information.
  • Is metadata potentially relevant?
    - If metadata, especially dates, times, and computers from which posts were made, are potentially relevant, you must use a forensic software tool to collect the information.
  • Is the relationship between parties potentially relevant?
    - If the relationship between parties is potentially relevant, carefully consider any decision to rely on screen capture or user archiving, since this data may not be adequately captured.
  • Are a user’s comments on other individuals’ posts potentially relevant?
    - If a user’s comments on a third-party post are potentially relevant, again, carefully weigh any decision to use screen capture or user archiving, since this data may not be adequately captured.
Collecting Social Media Information

After eDiscovery practitioners have broadly defined the scope of social media information they want to request, they must collect the data. In addition to technological challenges presented by collecting ESI, collecting social media can also be complicated by who owns the account, including whether it is an employee, opposition witness, opposing party, or a juror.

In civil litigation, access to social media information is limited to direct access, i.e. access using the targeted user’s username and password, or indirect access, where a third-party account is used to access publically available information from a targeted user’s profile.

As a result of this restriction caused by the Stored Communications Act, coupled with the likelihood that opposing counsel and perhaps the court will not have experience in the discovery of social media, it is imperative that both sides come to a clear understanding of the method by which social media evidence is to be collected.

Consider these three quick tips for determining which collection method to use:

1) Weigh collection methods carefully, taking into account the collection cost, the value of information collected, and the defensibility of the process.
2) Work with opposing counsel to get access to desired information.
3) Collect broadly – Once you’ve decided to collect social media information, collecting the related information, including metadata, will increase the defensibility of your collection method and aid in authenticating collected evidence at trial.

Authenticating Social Media Evidence

Social Media evidence is not self-authenticating, and the relative ease with which social media networks can be hacked means that some courts have heightened standards for authenticating social media evidence.

Use one of the four standard accepted methods to lay a foundation for admission of social media evidence:

1) Deposition Testimony –The purported creator can be asked if he or she created the posting in question
2) Forensic Investigation – Using forensic tools, a purported creator’s computer or mobile device, specifically the hard drive and search history, can be examined to determine if a posting or profile originated from that device.
3) Subpoena to a third-party social networking site – A subpoena to the social networking website provider can be issued to obtain information related to the purported users’ accounts and profiles, potentially linking the establishment of the profile and posting in question to the purported creator.

Use of “Distinctive Characteristics” - If the characteristics of the specific communication in question are genuinely distinctive, courts may allow circumstantial authentication based on content and context.

Use Methods and Processes to Your Advantage

A verifiable process and using the correct collection tools create the ability to describe exactly how information was found and its relationship to other information, and hopefully tie social media evidence to a user.

At the very least, a verifiable process of collecting social media information allows for the identification of circumstantial authentication evidence from other sources, whether in the form of testimony or forensic data from electronic investigation of a computer or mobile device. At best, the information gathered from social media sources, while not self-authenticating, is supported by other evidence collected at the same time.

Best Practices from the Bench

U.S Magistrate Judge Kristen Mix, D. Colo., recently outlined six tips for locating, collecting and authenticating social media evidence in a defensible way:

1) Seek discovery of social networking information from the opposing party before subpoenaing Facebook or other social networking websites.
2) Perform a public search for information usually available on a social networking website.
3) Be mindful of your ethical responsibilities. Hiring a private investigator to “friend” the opposing party may be “inherently deceitful and unethical, even if the investigator uses his own name.” Contacting the opponent yourself would likely be impermissible direct contact, and may also violate the rule providing that a lawyer may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
4) In complex cases, explore the possibility of “unbundling,” or development of a litigation management team to handle electronic data.
5) This is not your father’s discovery. Successful discovery of social networking information may require significant efforts to educate the judiciary about the fallacy underlying electronic discovery (just because something is electronic, it can be searched and produced instantly) and the actual cost and burden of production.
6) Advise your clients to be prudent and avoid spoliation sanctions. “The courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed and produced to the opposing party.”

-- Kristen L. Mix, “Discoverability of Social Media,” Faculty of Federal Advocates, September 23, 2010.

As the use of social media expands, eDiscovery practitioners should anticipate that more of it will be discoverable. By familiarizing themselves with the challenges now, they will be prepared for the next case that involves Facebook. LinkedIn, Twitter, or whatever hot new social media site is looming on the horizon.

Back to Discovery Digest - Q4 2012

As used in this document, “Deloitte” means Deloitte Financial Services LLP. Please see www.deloitte.com/us/about for a detailed description of the legal structure of Deloitte LLP and its subsidiaries. Certain services may not be available to attest clients under the rules and regulations of public accounting.

While the information in this article may deal with legal issues, it does not constitute legal advice. If you have specific questions related to information discussed in this article, you are encouraged to consult an attorney who can investigate the particular circumstances of your situation.

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