Legal Tech: Demystifying Social Media Discovery

From the requesting party standpoint, the starting place needs to be a basic understanding of how each of these platforms function: is it primarily for sharing photos (Instagram) or is it an analog for text messages (WhatsApp). That will, in turn, dictate how requests for production are phrased, because, just as with all forms of discovery, requests for production covering social media should be as specific as possible. Overbroad requests, such as the plaintiff's entire Facebook account, will not get you very far. See, e.g., Ye v. Cliff Veisman, Inc., No. 14-CV-01531, 2016 WL 950948, at 3 (N.D. Ill. Mar. 7, 2016) (denying request to access entire Facebook archive because request was not limited by time or relevant content). In requesting social media information, therefore, you should describe what type of information you want and be prepared to explain why that subset of all possible social media is relevant and proportional to the needs of your case.

Possible reasons for relevance include: 1) social media postings reveal a party's physical or mental capacity following an accident, procedure or other key event; 2) a party's social media postings might indicate their whereabouts — perhaps confirming an alibi or indicating what they were up to on a day they missed work; and 3) many different social media platforms, not just the ones built primarily for messaging, allow for direct messaging between users. This last category means that many different social media platforms may include the same types of information contained in text messages or email.

The next thing to understand as the requesting party is the production format for a particular platform — this is where a little bit of technical knowledge can go a long way. If you're requesting the contents of a messaging platform, a nonnative production — i.e., just the text of the conversation (preferably with some basic metadata) — may suffice. But if you're requesting Facebook posts, you may prefer some screenshots of how the information looked on the platform itself. If it's a platform you don't use yourself, consider giving it a test run to get a better feel for it.

For the party that is potentially producing social media, perhaps the most important step you can take is to ensure that your client is preserving the relevant social media content. How this is achieved will depend greatly on the particular platform. At a minimum, have a conversation with your client to learn which social media platforms they use and how they use them, and admonish your client not to intentionally delete anything. Next, if you don't understand how WhatsApp chats are preserved, for example, and you need to make sure they are preserved, take the time to figure it out, or there are plenty of consultants who can help with preservation, collection and production. Failing to preserve social media evidence can have just as severe of consequences as failing to preserve other types of evidence.

Finally, requirements of possession, custody and control for social media include some intricacies, which this article will simply put on your radar with a couple of examples (a full discussion could be its own article, so be sure to research the particulars of your jurisdiction): 1) if a user saw a posting on a particular platform that has since been removed, they are unlikely to have the right to get the posting from a third party; and 2) an employer is unlikely to be able to provide information from the personal social media accounts of its employees.

Remember where we started with this article: Social media evidence should be handled the same way as any other evidence. Hopefully thinking of it in those terms will make it less scary. Also note that this article barely skimmed the surface, so if you want to read more about social media discovery, consider starting with "The Sedona Conference, Primer on Social Media" (Second Edition," 20 Sedona Conf. J. 1, forthcoming 2019).

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Todd Heffner is a construction litigator and e-discovery specialist with Jones Walker. He can be reached at [email protected]. This article also appeared on Daily Report Online, an ALM sibling of Cybersecurity Law & Strategy.