Social media has become the norm in business communication, even in highly regulated industries. And it is recognized by law as official business records, on par with traditional forms of communication such as email.
As a result, social media affects the ediscovery process, as companies need to address another form of communication to collect and preserve data for litigation purposes. That’s why today we look at the intersection of social media and ediscovery and discuss two key challenges: identification and collection, as well as opportunities legal teams should consider.
Impact of Social Media on Ediscovery
There’s a number of reasons why social media is on an equal footing with email. It’s a lot more convenient for customers to schedule appointments with their physicians for instance or inquire about products in stock, or talk to teachers about their children’s school performance.
Companies cherish this form of communication, too. Just a quick glimpse at comments and tags associated with a brand and companies can instantly take the pulse of their consumer base and adjust their market position and messaging accordingly.
Despite these obvious advantages to social media, there is also a sentiment of concern, especially among legal and compliance teams, or any team whose scope of work includes data privacy and security.
For ediscovery specialists, social media is another field ripe with information that needs to be collected, preserved and made available in case of an ediscovery request.
Social Media ESI and Metadata
Under the Federal Rules of Civil Procedure, the term electronically stored information (ESI) encompasses:
any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form…Rule 34(a)(1) is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.
So what constitutes electronically stored information in the social media realm?
The scope is quite broad, ranging from Facebook photos to images posted on Twitter to LinkedIn status updates and comments. This issue is made even more complex in the case of company profiles, where it might be difficult to keep track of all employee activity from official business accounts.
Depending on the social media platform in question, ESI can include essentially any activity one performs on social media or any bit of information. This could be a direct message, status update, post comment, image uploaded, or a gif. And it doesn’t stop there: ESI also includes metadata about these activities.
For instance, if a customer wants to see all data you’ve stored about them, you’d need to include all communication performed via social media, as well as the metadata (eg. date and time of the message sent, the recipient, message size, attachments, image sender, image recipient, image type).
And there is another layer of complexity here. Social media content can be gone swiftly. Any Facebook reaction or comment, or any retweet or link posted can be deleted in a matter of seconds, leaving you without crucial evidence for your case. With metadata, you’re pre-empting this scenario. Even if a bit of information gets deleted, records of this deletion will be made and preserved, and you will have an easier time building the case.
So, it’s clear that there are numerous data sources that companies need to address and monitor in order to be able to respond properly to an ediscovery request. Let’s now look at ways to capture and collect all this electronically stored information.
Collecting Social Media ESI for Ediscovery Purposes
As we’ve seen, there is a vast number of data sources into which you need to look. Plus, the volume of data is constantly increasing.
As a company, you’re not responsible for collecting ESI for a single customer only. Instead, you need to collect evidence of any interaction between your brand and any third party. And that’s why collecting electronically stored information can be a daunting task. Both the volume and range of information keep expanding.
One of the key points in ediscovery is the totality of information, i.e. you should disclose all information about a party under an ediscovery request. To be able to do this, you first need to have all this information available. And without proper identification and capturing, it’s quite difficult to do.
Now, as you might imagine, this is nearly impossible to be done manually. Some outdated tactics, such as taking screenshots of a particular conversation might get you only a little far.
For one, it is almost inevitable that you will miss or overlook a bit of crucial information and not capture it.
Second, screenshots fail short when it comes to preserving metadata.
And finally, you will not be able to prove the authenticity of your data, which is another essential part of a properly addressed ediscovery request.
While screenshots might be able to work in an in-house investigation, though their usability is dubious even then, they almost certainly won’t suffice in an official ediscovery request.
So what can be done instead? Some companies resort to using social media’s very own export functionalities. This way, they can capture the bulk of information, but it often happens that all information is saved in a single format (most often as a PDF), which might be inconvenient for an ediscovery request.
Alternatively, social media platforms only allow you to export all information from a single account, but not individual files or messages. This would require you to go through a large volume of information. But just how large?
Well, in the case of Max Schrems, an Austrian lawyer whose fight against Facebook data collection made the international headlines and led to the downfall of Safe Harbor, the social media giant had above 1,200 pages worth of information collected about his use of Facebook.
If this is applied to organizations that use social media to interact with customers and followers, the data set size gets much larger and very difficult to review.
And the second downside of relying on this type of information collection is the fact that your legal teams or discovery specialists would need to go through the exported files and redact any information not relevant for a particular ediscovery request in order to avoid privacy infringement.
Plus, some of these innate export functionalities don’t include metadata. As we’ve seen, this can prove to be detrimental to the quality and authenticity of a company’s response to an ESI request.
Overcoming Social Media Collection and Preservation Challenges
If you want to prepare for a litigation case properly, you need to make sure that you can easily access all relevant data for an ediscovery case. To be able to do that, you’d first need to be able to capture or collect this information.
As we’ve mentioned, any attempt at collecting data manually is likely to fail.
Instead, companies need to find ediscovery tools that can automatically capture any information, parse them into appropriate formats, along with preserving their metadata, and then securely store them in a safe data archive.
Also, given the nature of social media formats, it’s good to have a tool that allows you to export any given message and its elements into the most adequate format, so that’s easier for your legal and discovery team to present this information in a litigation case.
Again, given the sensitive nature of business data, it’s also important to understand who should have access to this information. Screenshots taken manually can be easily tampered with, whereas securely stored data can’t. Another aspect to consider is for how long you need to retain business records: each industry has its own set of rules.
Overcoming Social Media Identification Challenges
To adequately manage all ediscovery steps (identification, preservation, collection, processing, production and presentation), companies need to first correctly identify all information that relates to an ediscovery case. This means identifying all information sources and then pinpointing data relevant to the case.
In addition to archiving tools, it’s also important to have a clear social media strategy, with clearly defined stakeholders, communication channels, and information resources. This is a prerequisite that will largely impact the success of all subsequent steps.
But unfortunately, companies often overlook the importance of a social media retention strategy. One of the reasons is that it lies at an intersection between marketing, legal, compliance and tech teams, each with their own data set and tools.
Streamlining their coordination can pay off immensely. Not only will companies be able to address ediscovery requests properly, but they will also be able to safely retain their business records and thus ensure regulatory compliance.
Ediscovery Day 2020
The topic of social media ediscovery is just a tip of the iceberg. If you want to learn more about key trends, challenges and solutions from Ediscovery professionals, join us at the sixth annual Ediscovery Day on December 3.
This is a unique opportunity to hear hundreds of industry professionals discuss the ever-evolving role of data custodians, discovery experts, paralegals and IT teams in legal cases and share perspectives on how to address the complex issues within our industry.
This year’s Ediscovery Day brings a number of hot topics, including defensible remote data collection, standardization in Ediscovery processes, the impact of the ongoing pandemic, new techniques to find data faster, the role of data archiving in ediscovery, and many more.
See you on December 3!