Is Social Media the Future of eDiscovery?

24 February 2022 by Anith eDiscovery social-media
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Takeaway: There’s valuable data hidden within even the most trivial social media posts, but collecting it is near-impossible without professional help. However, once it’s collected, reviewing your documents is easy with the right next-generation eDiscovery software.

The rise of social media is changing the scope of eDiscovery.

Researchers claim that 65% of Fortune Global 100 companies are active on Twitter, 54% have Facebook fan pages, and 30% have blogs. So, it’s safe to say that companies see social media as a convenient way of interacting with customers. And it’s not just this marketing and communication information that’s valuable for eDiscovery. Social media posts reveal important information about a person’s character, state of mind, and lifestyle – which can become pivotal evidence at trial. For example, take the case of an employee claiming to have been at home with a medical condition. If her Facebook posts place her at a day spa, instead, then that’s evidence worth exploring in court.

Social media posts might seem trivial, but courts treat them the same as any other type of ESI.

Courts see social media messages and posts as an extension of electronically stored information (ESI). And they have a simple rule: If something was voluntarily shared and intended for a public audience, it needs to be made ‘discoverable’ regardless of its medium. So, businesses need to preserve potentially relevant social media content as soon as litigation becomes likely – however insignificant the content might seem. And all the usual sanctions will apply if they don’t do this.

But the logistics get complicated. For one, there’s so much social media to sift through.

In 2019, every minute of the year saw an estimated 1 million logins on Facebook (69% of US adults are on Facebook), 87,500 tweets on Twitter, 4.5 million views on Youtube (73% of US adults use YouTube), 347,222 scrolling instances on Instagram, and 1 million views on Twitch. That’s a LOT of social media activity. And it’s not just text. There are status updates, photos, videos, live chats, direct messages, etc. – all with their own metadata. For example, Facebook user metadata fields include a post’s author, its comments, its linked media, etc. And Facebook stores ‘user activity’ metadata like IP address logs.

It’s hard to collect such a wide variety of data, especially if you want to do it right.

Social media content may be openly available on the web, but that doesn’t mean it’s easy to collect for eDiscovery. For example, if you take a screenshot or print out the posts, you’ll lose valuable metadata associated with the original file. (Plus, the creator is unlikely to authenticate it for you to present as evidence.) Even using an export tool – like those provided by Facebook and Twitter – won’t solve the problem. You’ll still need the user’s login details to access their account, and even that won’t guarantee you embedded content like linked YouTube videos.

And this brings us to issues of privacy. For example, should some types of social media content be off-limits?

The law protects cell phone data from unchecked surveillance. You’d need a search warrant to access that information the same way you’d need one to enter a house or car without probable cause. But with social media like Facebook and Twitter, users upload all their information and media voluntarily, intending for others to see it. So, do we need their permission to collect the data for trial? Things become a little less murky when dealing with content that’s protected by privacy settings. The user hasn’t shared this information publicly, so it’s only right that you’d need a warrant to access it. But what about Instagram ‘stories’ that disappear after 24 hours? Should you be allowed to capture them even if you can’t get a warrant that quickly? And it’s not just privacy. Anonymity can get in the way, too, with sites like Reddit where you might find incriminating evidence but have no way of proving who it’s from.

Getting a user’s permission to access their accounts will make things easier. But there’d still be a few complications.

Users might agree to share their login details with a legal team, but this sets up other problems. For example, will the social media provider’s terms of use allow the team to litigate using the data they find? And who decides how much of the user’s account they’re allowed to search? (After all, they’ll have access to a lot of irrelevant – but sensitive – information.) Also, what’s to prevent the team from adding or deleting data while searching the account? And if the user has the same login details for multiple accounts, who’s to ensure that the legal team isn’t searching those accounts, too?

This is why it’s so much simpler for law firms to hire specialists to collect social media data.

With the right tools, you can get at any social media content. For example, you might use a web crawler to capture data from an account and store it in its native or near-native form using a Web ARChive (WARC) as a container. This means you can view the account as it originally appeared, along with its metadata (although you won’t be able to see all the linked content). Obviously, most small and midsize can’t do this without support, so they hire specialists to help.

Once you have the data, though, you can review it in-house with the right eDiscovery platform.

Collecting social media data might be hard, but the right eDiscovery software can simplify data review. For example, GoldFynch offers essential eDiscovery tools via an affordable monthly subscription. Here’s more about GoldFynch that you might find interesting:

  • It costs just $27 a month for a 3 GB case: That’s significantly less than most comparable software. With GoldFynch, you know what you’re paying for exactly – its pricing is simple and readily available on the website.
  • It’s easy to budget for. GoldFynch charges only for storage (processing files is free). So, choose from a range of plans (3 GB to 150+ GB) and know up-front how much you’ll be paying. You can upload and cull as much data as you want, as long as you stay below your storage limit. And even if you do cross the limit, you can upgrade your plan with just a few clicks. Also, billing is prorated – so you’ll pay only for the time you spend on any given plan. With legacy software, pricing is much less predictable.
  • It takes just minutes to get going. GoldFynch runs in the Cloud, so you use it through your web browser (Google Chrome recommended). No installation. No sales calls or emails. Plus, you get a free trial case (0.5 GB of data and a processing cap of 1 GB), without adding a credit card.
  • It’s simple to use. Many eDiscovery applications take hours to master. GoldFynch takes minutes. It handles a lot of complex processing in the background, but what you see is minimal and intuitive. Just drag-and-drop your files into GoldFynch, and you’re good to go. Plus, you get prompt and reliable tech support.
  • Access it from anywhere, and 24/7. All your files are backed up and secure in the Cloud.

Want to find out more about GoldFynch?

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