Learning to “Like” Social Media EDiscovery

There is no way around it—social media has become an integral part of our everyday communication. It is no longer just some fleeting trend among the cool and hip. The use of social media has increased exponentially in the past few years. Evidence? How about these numbers:

• Facebook has exceeded one billion users
• Twitter has more than 500 million users

Social media is also no longer limited to personal use. Approximately 80 percent of companies now use social media to market products and build consumer relationships. Not only is social media a staple in everyday communication, it is now smart business.

While “friending” and “tweeting” provide numerous benefits, legal professionals have been anxiously mulling over the numerous challenges of social media ediscovery. In 2012, issues related to privacy, discoverability, preservation, collection and authentication of such data permeate discussion amongst courts, litigators and commentators. Although governing standards have yet to emerge on these issues, expect best practices regarding social media to continue to evolve.

• Discoverability –

  As demonstrated by E.E.O.C. v. Original Honeybaked Ham Co. of Georgia Inc.,[1] many courts have favored broad discovery. There, the court reasoned that social media data was the logical equivalent of an “everything about me” folder with a bevy of relevant information. However, other courts have rejected broad discovery of such data, finding that the Federal Rules do not grant a generalized right to rummage at will through information a person has limited from public view.[2]

• Preservation and Collection –

  Due to the intricacies of social media electronically stored information (ESI), which is frequently changing and retained by the platform provider on remote servers, preservation is no easy task. Additionally, social media collection options such as taking screenshots and proxy monitoring are still rudimentary at best. Regardless of the method chosen, counsel must start early, obtain consent and request login information before collecting.  Counsel should also consider retaining an expert to avoid potential issues later on in the discovery process.

• Authentication -

  The contents of these sites are not self-authenticating documents, so legal professionals often have to be proactive to ensure the account holder posted the relevant information. Best practices suggest that practitioners should collect as much evidence as possible—including subscriber reports from the service provider and relevant metadata—to resolve questions about ownership, access to the account and authorship of the post.

Practices and laws regarding social media ediscovery will remain in a constant state of change. Ignoring social media is no longer feasible, practical or defensible. At the end of the day, legal professionals must “follow” or “like” such change to stay ahead of the curve or at least ride the crest of the wave.