Social media is an important source of discovery in an increasing range of cases and can often yield the most important evidence. Social media and its derivatives are prevalent with many people using social media as their dominant communications channel, preferring some in-app messaging tools to e-mail. Corporations, too, are using these media to target and communicate with their customers. Ignore these sources and you leave potentially game-changing evidence on the table.
Early social media case law largely addressed whether privacy concerns mitigated the obligation to identify, review, and produce social media communications. It was thought that accessing these sources of information was too intrusive. In all jurisdictions in Canada, those questions seem to be settled, largely as social media has become familiar even to judges.
Social media is, without doubt, discoverable and producible if relevant, not only because courts have understood that the point of social media is the erosion of privacy, but also because courts have largely adopted the view that privacy will not trump discoverability of evidence as long as there isn’t an impact on third-party interests. Also, redaction tools have improved.
A quick review of recent discovery case law shows that social media is used as evidence in all manner of cases, but it is particularly prevalent in personal injury, employment, family, criminal, and theft of IP or unfair competition matters. And that makes sense: These are primarily personal tools. Furthermore, social media are frequently pictographic or representational: Shorter text accompanies pictures, but this text is economical and direct. It is compelling evidence.
Social media are today’s e-mail of yesterday: It’s where people display their emotions and thoughts, communicate in real time, and exchange important collateral information, such as photographs, videos, and voice recordings. Moreover, since many people access their social media accounts on mobile devices (such as their phones) and either turn “geolocation” services on within social media apps or have otherwise poor privacy practices, collection of social media yields valuable metadata including date and time stamps for posts.
Embarking on social media discovery is a bit like going on a safari: Everyone knows of and wants to see the Big Five (LinkedIn, Facebook, Twitter, Instagram, Pinterest), but if you look closely, there is an abundance of channels in the social media ecosystem. Spend time early in fact discovery identifying potential sources of social media and custodian interviews. My standard form custodian interviews include developed scripts for social media investigation, tied closely to my scripts on mobile devices and cloud computing.
Many corporations have dedicated teams for their corporate social media accounts. Companies troll LinkedIn for candidates or have writers developing content. Companies tweet and have Facebook and Instagram profiles. A quick Google search (or a search within an app) can help you identify any accounts held by a corporation.
The same searching techniques are available to identify social media accounts for individuals, except a search alone is not conclusive because individuals can both implement privacy settings on their accounts to screen them from search and create profiles using a name other than their legal name. I always directly ask my opponents about their social media activities whether in oral examinations or written interrogatories.
Beware of your ethical responsibilities when working online and ensure you are avoiding behaviour that regulators have identified as irresponsible or unethical. This is particularly important when using social media against an individual litigant, represented or otherwise. Regulators that have issued opinions on the ethical use of social media have noted that “friending” someone in order to gain access to their profile information is never appropriate. It is also not appropriate to invent a fictitious profile to lurk on opposing litigants’ pages. Generally, I stop at Google and in-app searches for public information and then ask opposing parties for information from the accounts I have uncovered.
Once you have identified target social media, you need to develop a plan for its collection. For public accounts (and by this I mean accounts where the entire profile is made public and visible over the Internet), it is possible to collect the information by using a collection tool. The one I use most frequently is X1 Social Media because it can defensibly capture and reassemble most public social media channels. While I always recommend electronic (native) capture of social media, there are times when I have captured screen shots or printouts of postings — particularly where I have been concerned an opposing party would disable or hide an account. The screen captures (with date stamps) have been helpful in proving the existence of the account and content at the time of the screen capture.
Where accounts are subject to privacy settings, access to the account may be required, and collection will fall to the account holder to implement. Some apps, such as Facebook and Google+, have developed in-app collection capabilities. There are excellent guides available about how to use these tools, and I frequently use Google Takeout to collect anything on Google Drive. I always ask my client to temporarily change the password to something innocuous before turning over the account to me or a third party for collection, and then immediately re-change the password after collection.
The value of a proper collection is that metadata is preserved. The metadata might include information to align the elements of social media with each other (re-aggregating the page when reassembled after collection). However, many social media have geolocation or geotagging capabilities and the metadata can reveal a lot about the post and where the user was at the time of the post. This information will not be available if social media is not collected electronically.
There are additional and idiosyncratic challenges associated with social media collection. For example, Twitter can “cap” the number of tweets it retains, meaning the longer you leave collection of Twitter, the more likely it is that “older” messages will be difficult to retrieve. However, social media collection is becoming increasingly documented and is currently a hot topic in the CLE circuit, so there’s no longer any reason to avoid this valuable source of evidence.
Dera J. Nevin is the director of e-discovery services at Proskauer Rose LLP. The opinions in this article are entirely her own.
