January 01, 2015

E-DIscovery: Social Media: #RealDiscovery

William Hamilton

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Social media have made a grand entrance onto the litigation stage. Stories abound about the tweet or the Facebook page that won or lost the case, sank or saved counsel, or was missed or lost. Lessons abound reminding us of the power of social media and how to get the “killer” social media artifact into evidence.

Few cases, however, are won or lost on the “smoking gun” document that magically appears on counsel’s doorstep. Lovely when it happens, but rare that it occurs. Real social media e-discovery is not a “one and done” event; it is a process that mirrors traditional e-discovery. Social media e-discovery corroborates, punctuates, and enhances your litigation story.

The volume of electronically stored information—ESI, to those in the know—drove the first crushing wave of e-discovery. There was simply too much of it to put human eyes on every email, slide, instant message, and word processing document collected from the computer archives of even a modest-sized business. An army of reviewers could work for weeks, months, even years without getting to the top of the ESI mountain. But ESI provided the solution to the volume problem it created: The tools of machine search and information retrieval evolved, making the process manageable, if expensive.

The same volume explosion is now taking place with social media. Facebook is 10 years old and has expanded exponentially. It is not uncommon for any particular Facebook account to have thousands upon thousands of pictures, messages, comments, timeline entries, and other electronic artifacts. We have now passed the social media e-discovery tipping point: Lawyers cannot manually review social media artifacts effectively. Clients can’t afford to have us scroll through tens of thousands of the client’s (or opposition’s) social media pages to find the relevant and important artifacts. Like business ESI, social media ESI needs to be intelligently searched with e-discovery software tools.

Four new social media e-discovery principles are now center stage:

  • First, end the manual review. Self-collection of business ESI is a high-risk, universally criticized practice. The same is now true of social media artifacts. Social media must be searched electronically. Ironically, a software search will do a better job than human manual review. Do you really want your client telling you which social media pages are relevant? Or does your client want to pay thousands of dollars or more for an associate to look through a Facebook “diary”? No! Load the social media data into an e-discovery tool and search them.
  • Second, gone are the days of capturing social media pages with screen shots. Social media contain important metadata just like other ESI. Use social media e-discovery software to collect and analyze those metadata. You wouldn’t ask your client to forward you screen shots of email.
  • Third, social media artifacts must be reviewed in conjunction with other ESI. Let the data tell the story. You can do this only by reviewing social media data when they are integrated with your business and traditional ESI in the same e-discovery software platform. The litigation story is accentuated and punctuated—and, sometimes, only discovered—by review of nearly contemporaneous data from varied sources. For example, I may want to see the interplay between improper conduct at work and the social media posting from home. I can bolster and better understand the context of an allegedly discriminatory oral statement at work that the “Old guy can’t keep his eyes open anymore!” if I also have the social media posting from home of an age-related joke or pictures of a snoozing Santa Claus.
  • Fourth, social media e-discovery requires e-discovery tools. No one today would think of doing e-discovery without the right software. So why are we pecking away at social media sites like chickens looking for treats on the barn floor?

Social media evidence has arrived. We all know that. Now start thinking about genuine social media e-discovery, and choose your social media collection and review software carefully. And make sure the opposition does the same so that you get the data you deserve.

William Hamilton

The author is a partner at Quarles & Brady, Tampa, and executive director of the International Center for Information Retrieval at the University of Florida College School of Law.