eDiscovery has become of large importance to litigation in the last decade as our lives switched from traditional analogue ways to deeply digital. Most of our lives, work and play alike, have shifted to screens, and the acquisition of discovery has needed to keep up with the values of society as a whole. It didn’t take long for emails to become a thing of the past and roll over to the efficiency of instant messaging and other networking sites. There is no discounting the value that social media holds in eDiscovery with it becoming a favored form of communication and marketing. In order to understand the implications of social media in litigation, however, we must first understand what, exactly, social media is.
What is social media?
This should be an easy answer. The first thought that should immediately come to mind are the social networking powerhouses: Facebook, Instagram, Snapchat, and Twitter. These are just a few examples, though. There is much more to social media than the powerhouses. Social media differs from emails and other documents created on an electronic device, despite being digitally written content. But how?
Social media is defined as “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos).”
Breaking this down: every website you subscribe to creates a community for sharing ideas, and understanding social media categories helps to understand the broader scope of those communities. Hootsuite, one of the many organizational platforms for social media, has classified as many as ten types of social media. Below are six of those types.
• Social networks: As the name suggests, this category is specifically for communicating and connecting with others to form social networks. Facebook, Twitter, and LinkedIn are a few examples of this.
• Media sharing networks: Sites such as Instagram, Snaptchat, and YouTube, are less about connecting and more about sharing content with followers – usually images, audio, or video content.
• Discussion forums: Forums were where you could share and discuss information and opinions before there were social networks. Reddit and Quora are today’s favored forums.
• Bookmarking and content curation networks: These are the workrooms of the Internet, where users discover and inspire trending creations and content. Think Pinterest.
• Consumer review networks: Sites such as Yelp and TripAdvisor are used to search for opinions and reviews for almost anything. This can be vital for businesses, as comments can make or break their following.
• Blogging and publishing networks: These are for everyone that craves a digital voice. Common platforms for this are WordPress, Tumblr, and Wattpad.
These examples don’t offer the whole scope, but it gives a taste of what social media is on the eDiscovery menu. Understanding the basics of what social media is, and how it’s used can help us understand why it’s important in eDiscovery.
Why is it important to eDiscovery?
eDiscovery is immensely important in today’s digital era. With files moving from briefcases to shared clouds, the same idea exists between how we communicate as individuals. In days past, handwritten letters might be considered necessary discovery, where email threads are more commonplace today. It’s this transition that has bolstered the necessity for eDiscovery, but where does social media fit into this?
Social media is a good place to start the eDiscovery journey by following a trail of potential evidence since most adults integrate it into their daily lives. The public platforms make posts permissible as discovered content as long as it’s relevant to the case. Because everything posted on the Internet has an intent of being shared, any and every post can be extracted for eDiscovery, despite privacy settings.
The vast amount of content posted to social media makes it important to consider during the process of eDiscovery, but how would it help in litigation?
How is social media used in eDiscovery?
In short, social media is used and collected the same way as any discovery would be collected. All discovery that’s collected must be specific & pertinent for the case at hand – social media is no exception. But, because it’s eDiscovery, it goes through the EDRM process, which we’ve discussed in past blogs.
Information discovered via social media is often utilized for validating points made in litigation. A common example would be if one party claims injury and seeks compensation, but they’ve posted content showing they’re uninjured. The discovered post could be used to invalidate the claim. Social media is to be used in eDiscovery to search for litigation related content, not to be utilized to “fish” for supporting content irrelevant to litigation.
Overall, social media is different from email threads and other documentation, but hold the same rules when performing discovery through electronically stored information (ESI).
How does social media affect eDiscovery?
The breadth of eDiscovery is expanding from businesses using G-Suite, to sending IMs to coworkers, to friends who are sharing tweets on Twitter. As more people converse via social media than any other communication device, the casual nature in which we communicate becomes pertinent as eDiscovery to be retrieved and necessary to be preserved.
Preservation is key in using social media during litigation; a freeze is typically placed on accounts related to the case to do just that. Account holders are requested to refrain from posting, and more importantly, editing or deleting content.
Most social media has the ability to be edited, altered, or deleted in some way after the original post has been made. It’s often tempting to edit or delete a post when litigation seems to be around the corner, but that only shows something to hide, and it’s spoliation. If this happens, there may be a request to extract data from the site or device to peer into the metadata of the original post.
Great care is taken to maintain the pristine nature of the content when searching a device during eDiscovery. Devices will have important eDiscovery extracted and will be placed into a secure location while the data is being searched on a new hard drive. The hard drive is essential as it maintains all files created, including deleted materials. While deleting eDiscovery during litigation is unlawful (and potentially case-threatening), if it does occur, a trained forensics expert would be able to recover lost data.
Social media is a vital part of today’s society and an integral part of our communication systems. Understanding all the different types of social media that are available and utilized by billions of people every day can clarify why it is an important part of eDiscovery. It can validate other discovery in litigation, and should be preserved as much as possible.
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