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
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.
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.
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.
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.
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.
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.
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 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:
A recording of the program, including the Q&A that followed, is available for free by completing the download form here: https://xactdatadiscovery.com/webinars-on-demand/.
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