Navigating Social Media Retention and Collection During E-Discovery

Social media (“SoMe”) is so enmeshed in our daily lives it is difficult to imagine the time when we didn’t have it. Through our phones, computers and tablets, social media provides instant communication and connection, with people posting about their successes, vacations, sporting and entertainment events, and their favorite memes or videos. Companies and organizations use SoMe to gain market advantage, shape and model their own image, market and advertise to customers, track how effective their marketing campaigns might be, understand who their customers are, test new products or services and provide a platform through which customers can provide feedback. Every post or piece of analytics could be considered a “business record,” subjecting it to discovery in both civil and criminal litigation, internal and government investigations or audits. As a result, attorneys and their IT teams should understand the best practices for preserving, processing, reviewing, and producing data from SoMe sites to acquire valuable – and usable – evidence.

Social Media Challenges

The most difficult aspect of SoMe information is that it can be hosted on a variety of different hosting platforms, each having its own systems of storing and cataloguing the information. This poses a much bigger challenge than the collection of general electronically stored information (“ESI”) like emails, word processing documents, or spreadsheets, which is often stored in centralized locations. Also, SoMe information can have many distinguishing features that make it difficult to search and/or analyze. For example, the information can be either personal or business-related, it may feature complex computer language that makes searching difficult, some SoMe information is transient,  and posts can be altered or deleted in a short amount of time. Determining who the author of a post may be presents additional complications because posts can be anonymously written and posted. Because posts are not usually stored on the author’s computer or on their company’s servers, even if the author is known, discovery requires significant investigation.

Social Media Discovery Best Practices

For discovery purposes, pertinent information comes not only from the text of a document or social media post but also from the metadata, which includes dates, computer IDs and locators, plus edit and modification information. The importance of this information cannot be overstated, as it could be vital to both the substantive elements of a case and questions of evidence admissibility. Therefore, the collection of metadata is critical in cases that involve social media information.   As such, In view of how fragmented social media is – including myriad social media platforms, storage processes – and the difficulty in extracting and processing social metadata, preparing for social media discovery is a significant undertaking. Below are concrete recommendations to make this task more manageable.

#1 - Understand How Your Organization Utilizes SoMe Information

Before you can implement an effective document retention policy or employee guidance regarding how to utilize social media for business and personal purposes, it is important to understand how your organization uses SoMe information. Do you communicate directly with customers or potential customers? Do you use analytics gleaned from SoMe to drive business strategy? Are employees permitted to post business-related topics on their personal SoMe sites? This information is important to understand when crafting your organization’s SoMe policies.

#2 - Update Your Organization’s Document Retention Policies

In dealing with SoMe, companies should first update their own document retention policy to take into account SoMe platforms. A good starting point is to look at the companies’ current retention plan dealing with storage and retention periods for emails and documents.These policies may need to be updated to comply with regulatory or industry compliance or standards (some of which are already addressing the preservation of SoMe information), or in anticipation of future litigation or any other business need to preserve the information To comply with these obligation, organizations should consider archiving their SoMe activity and maintaining an ongoing log of customer communications.

#3 - Consider How Best to Preserve SoMe Information

Social media content is covered by the discovery rules, just like any other type of information subject to ESI discovery. Thus, in a legal dispute, courts will deem social media information discoverable if it is relevant to the case, no matter how long ago it was created. Therefore, social media information would need to be placed under a legal hold so that it is be preserved. How to actually implement a hold on social media can be a bit tricky and business leaders should work closely with IT and in-house and outside counsel to ensure preservation is thorough and effective. 

#4 - Develop Plans for Collecting, Reviewing and Producing SoMe Information

Making social media information management a priority now will alleviate the headaches down the road and avoid such pitfalls as incomplete collection or chain-of-custody interruptions. Key considerations include the following:

• Use the latest tools to help capture information from a wider scope of application and site types. These tools work with a service provider’s application programming interface (“API”), allowing one application to access and gather the data and information of another, enabling parties to access specific platforms and apps in order to locate ESI data and prepare it for review.
• Deploy forensically sound methodologies that are key in establishing authenticity during discovery and at trial. For example, under the Federal Rules of Evidence (FRE 902 (13-14)), IT can create hash values that can be used to fulfill the new ESI self-authentication options.
• Host the data in native format which will allow easier access to more metadata.
• Catalogue SoMe information in searchable databases to allow for efficient culling and review of the data.
• Avoid authentication and admissibility issues arising from SoMe’s ease of editing, erasing, or manipulating content. Courts have generally concluded that SoMe screenshots (or static shots) are problematic because the image is merely a visual representation and does not provide any critical metadata such as date or time. Therefore, it is critical to preserve social media information in a way that allows its authentication and admission into evidence.

Conclusion

SoMe is becoming a pivotal source of data that should be carefully considered in company retention policies and discovery strategy. As collection of this data is continually evolving, businesses and organizations must make sure that their social media practices include steps that will allow for efficient preservation, collection, review, and production of this information. If you are not an expert in this area, consider seeking out attorneys and IT experts who understand the intricacies of social media information to ensure that your company is well-prepared for the inevitable.

DISCLAIMER: The information contained in this blog is not intended as legal advice or as an opinion on specific facts. For more information about these issues, please contact the author(s) of this blog or your existing LitSmart contact. The invitation to contact the author is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.