Just read an excellent post on social media and eDiscovery from Bow Tie Law, who I am excited to collaborate with for our Executive Briefing event in Seattle next week on November 7. The post highlights the importance of determining the appropriate scope when shaping eDiscovery requests involving social media. As Bow Tie notes:
Social media ESI can contain anything from party admissions to useful impeachment material. However, given how often people post to Twitter, Facebook, Instagram, Snapchat, and other platforms, lawyers do not want gigabytes of irrelevant information. Focusing requests can help ensure litigation is cost effective for both the requesting and producing parties … this requires strategic thinking, so lawyers should ask themselves, what do we need to prove our case? What is the story we want to tell at trial?
While strategic thinking is important in applying good proportionality principles to yet another potential source of ESI, it is also imperative to apply those skills to consider how social media fundamentally alters the tools available to tell your story at trial. Email remains the predominant form of ESI, but it is black-and-white, monotone, and static. In contrast, storytelling with today’s social communications tools tend to be in hi-def, dynamic, and in stereo. Consider the following:
- Conversations potentially material to eDiscovery that are happening now that may start on email, then move to a social media app, then to IM (aka “channel jumping”)
- Discussions that include emojis and embedded GIFs, video and voice files – and where likes, shares, and comments may be altered or deleted before they can be captured
Attempting to piece together these conversations occurring over today’s rich communications networks with collection processes and review tools optimized for the last generation of ESI can create a significant set of challenges. For example:
- Many firms continue to rely upon screen captures, requests to social media providers, custodian-driven collection – and even pictures taken from their iPhone – as methods of collection. This can lead to a number of complications in authenticating those collections (also, as noted by Bow Tie in a recent post) – along with missing the simple fact that conversations on social media tend to be comprised of multiple events (posts, likes, shares, retweets, etc.), and often between an ever-changing group of usernames that may not easily tie back to your list of custodians.
- For most of today’s email-centric review tools, dealing with a conversation comprised of multiple events often consists of converting each individual event into its own email-like message – losing the context and association to other events in that conversation. Once ingested into a review tool, those events can be re-assembled via approaches like conversational treading – but not without the risk that important components (such as specific media types, metadata, or like/share events) can easily be missed. This is – almost by definition – using tools not suited for purpose.