Ediscovery, the Other Social Dilemma
Key considerations when social media is digital evidence
The recent Netflix documentary, “The Social Dilemma,” has taken the airwaves by storm and paints a bleak picture of social media consumption, manipulation, and obsession. With a daily active user base that spans over half of the humans on earth (3.8B) and spends an average of three hours per day engaging with social media and messaging apps, it is easy to understand the scope of social media’s impact on daily life.
Today, social media use extends far beyond sharing cute kitty memes and bragging about your most recent meal or vacation. Platforms like Reddit and Twitter are essential vehicles for people to share breaking news; Instagram and Facebook are advertising behemoths; and LinkedIn has become crucial for sharing business insights. The variety of ways people engage with social media platforms and their messaging functions creates a wealth of potentially relevant electronically stored information (ESI) that ediscovery practitioners increasingly rely on. This article unpacks the unique challenges of social media ediscovery and highlights best practices to mitigate them.
Social media takeover
Social media traces its roots as far back as 1844, with the first message sent by Samuel Morse (“What hath God wrought!”). Subsequent innovation in the realm of computer science including the internet, email, and the ubiquitous ‘90s fan favorite, chat rooms, all helped shape what we now know as social media. The first platform to hit the market that can truly be considered social media was SixDegrees.com in 1996. Complete with a profile, friends list, and all the usual trappings of social media, this platform saw moderate success with a peak user count of over 3.5 million.
At the outset of the new millennium, Friendster surpassed the peak of SixDegrees in a matter of months following its 2002 launch and went on to peak at over 8.2 million users. Despite these early successes, social media did not truly rocket in popularity until MySpace exploded onto the scene. The site claimed the title of most popular website in 2006 and had jaw-dropping $12B valuation and over 100M users.
The social media takeover reached critical mass with the arrival of the big four social platforms, LinkedIn (2003), Facebook (2004), Twitter (2006), and Instagram (2010). These sites alone have over 4B monthly active users. And new platforms like TikTok, WhatsApp, and Snapchat are seeing even more dramatic growth.
Ediscovery goes viral
As people engaged with a greater variety of social media sources throughout their personal and professional lives, the wealth of spontaneously generated and potentially relevant information became increasingly attractive for legal proceedings and ediscovery. The vast web of digital data generated through the use of social media platforms falls squarely within the scope of ESI that is potentially discoverable under the Federal Rules of Civil Procedure. The official Advisory Committee notes accompanying the amended 37 (e) in the federal rules even go so far as to call out this data source explicitly: “It is important that counsel become familiar with their clients’ information systems and digital data — including social media — to address these issues.” Despite this inclusion, there remains a good bit of confusion as to which aspects of social media data are discoverable and what the most defensible process is.
The social dilemmas
Social media can contain a wealth of information but also poses unique headaches in terms of identification, defensible collection, and admissibility. As you wade into the social jungle, it is important to have an expert help you avoid the main landmines.
Where do you look?
Today, there are hundreds of social media platforms with follower counts in the millions and in some cases billions. The sites run the gamut from picture sharing applications to messaging apps, video sharing to professional network and everything in between. While it may seem daunting to consider hundreds of sources of potential ESI, the majority of social media data is driven by a handful of super popular platforms. The Facebook ecosystem alone (Facebook, Messenger, Instagram, and the messaging app WhatsApp) accounts for 7.2B monthly users. The 2019 Pew Research Center survey found that the most commonly used social media platforms by adults in the U.S. are YouTube (used by 73% of adults) and Facebook (69%). Other top social media sites by usage include Instagram (37%), Pinterest (28%), LinkedIn (27%), Snapchat (24%), Twitter (22%), WhatsApp (20%), and Reddit (11%).
The key to determining which platform to investigate is to understand how relevant custodians are communicating, and on which platforms. Ephemeral messaging applications like Signal, Wickr, and Telegram may be relevant if an engineering team frequently uses them, WhatsApp or WeChat may be relevant in a case involving international organizations, and Twitter, Facebook, or Instagram may be relevant in a case involving unfair marketing practices. Understanding the nature of a case and if and how custodians are leveraging social media help determine the priority of social media discovery.
What do you look for?
Each social media platform contains a potentially voluminous amount of disparate data dating back to the inception of a user’s account. It is important to understand what your technology partner will include in their capture of a social media profile and what metadata will or will not be included.
User-generated ESI in may include:
- A user’s posts, likes, and comments
- Direct messages
- Chat logs
- Friends or connections
- Log-on and posting times
- GPS data from photographs (just ask John McAfee)
- Some deleted materials
System-generated ESI may include:
- Proprietary unique identifier
- Item type
- Parent item/thread
- Linked media
- IP addresses
How do you get it?
While it may be enticing to print out a screen capture of a public social media site or even have the account owner press the “download your information” button several platforms have, it is important to remember that this will not necessarily include all the data you are looking for and may be limited to only public posts. Additionally, some social platforms limit what you are able to export based upon the type of account a user possesses. I recommend working with a forensic collection technology that specializes in social media collection to ensure you are able to gain access to the full scope of potentially relevant information. It is also important to work with a technology that can render the social media data in an easily reviewable manner.
When can you use it?
While there is ample precedent and case law to support the inclusion of social media ESI (even stuff that is private) in a discovery request, the requesting party still has an obligation to meet the requirements of FRCP 26(b)and demonstrate relevance to the case. And the bar for relevance, Federal Rule of Evidence 401 is far from high. Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” To ensure that this does not become a fishing exhibition, the court will often limit subject matter and duration of admissible ESI.
An additional area of concern with social ESI is authentication that the account and material posted to it were generated by the custodian or named account owner. As with relevance, the bar is not terribly high. Federal Rule of Evidence 901 states to establish authenticity, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it” and this done via presenting the “distinctive characteristics” of an account according to 901(b)(4). These characteristics may include account name, photos of the account owner, nicknames, IP address, specific topics, or slang. Judge Paul Grimm summed it up best as: “If it looks like a duck, waddles like a duck, and quacks like a duck, it must be a duck.”
New kids on the social media block
The social media ecosystem is rapidly evolving, with new players gaining hundreds of millions of followers in a matter of months instead of years. The main areas to keep an eye on in terms of potentially relevant ESI are:
- Ephemeral messaging apps – Self-destructing short-form communication platforms like Wickr, Signal, and Telegram.
- International messaging and social apps – WeChat and WhatsApp are the leaders with over a billion users each, but other international apps like QQ are gaining market dominance.
- TikTok – As I recently wrote, TikTok has taken the U.S. by storm and has over 650M global users in just a few short years.
- Alt-platforms – In light recent censorship controversies, new alternative or free speech platforms have sprung up in the last few months like Parler, Minds, and various Discord servers. Their user base is growing steadily and I expect more growth in this ecosystem.
I promise this is not referencing politics, rather the likelihood that a person may post something that is better, happier, or shinier than their current status. Social media users have a tendency to post filtered or even outright “fake news” about themselves, it is important to consider the reliability of a statement when including it as evidence in a matter. In a recent personal injury case, Giacchetto v. Patchogue-Medford Union Free School District, the judge noted:
“The fact that an individual may express some degree of joy, happiness, or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress.
While the relevance of a posting reflecting engagement in a physical activity that would not be feasible given the plaintiff’s claimed physical injury is obvious, the relationship of routine expressions of mood to a claim for emotional distress damages is much more tenuous.”
Better get used to it!
The social dilemma is here to stay. Based on the ongoing and dramatic increase in users and variety of platforms people engage with on a daily basis, this ESI headache is one each legal practitioner will face if they have not done so already. Given the challenges in securing the data defensibly and nuances around authentication and reliability, it is important to have a social media discovery expert along to help you avoid the landmines along the way. The right technology can also mitigate risks around spoliation and painfully slow and costly review. When in doubt find a data dork (I always am happy to volunteer!).