Social Media Defies Traditional Evidence Collection and Review Techniques

September 11, 2014 Guest Blogger

Traditional e-discovery collection tools are not designed to work with social media, and manual techniques are too time consuming to be workable, as a plaintiff learned in a recent wrongful termination case, Stallings v. City of Johnston City.

Here, the plaintiff was a prolific Facebook user and voiced her opinions about the case on the site. Recognizing this, the defendants asked the plaintiff to produce her posts from 2011 to the present on any social media site for any matter relating to the allegations in her complaint. Accordingly, the plaintiff’s counsel and a paralegal spent one week downloading, printing, and redacting nearly 500 pages of her Facebook activity. The redacted content included the names of posters, posts the plaintiff deemed irrelevant, and posts discussing minors. The defendants complained about the production and its redactions.

At a discovery conference, the magistrate judge ordered the plaintiff to produce an un-redacted version of the pages in electronic or hard copy. The plaintiff balked, complaining that the site only allowed her to download a complete record of her Facebook data and thus that the production would be unduly burdensome. The magistrate judge then said she could produce the entire electronic file from 2007 to present, noting that it would be covered by a protective order.

The plaintiff appealed the order to the district judge, arguing that the magistrate’s order required her to produce irrelevant information, created an undue burden, and violated her privacy along with the privacy of others, including minors, who were not involved in the litigation. Her counsel also claimed she could not put the relevant information on a disk.

The district judge found the magistrate’s ruling proper. First, the evidence had probative value, as the communications could include the plaintiff’s admissions or fodder for impeachment. Further, the plaintiff did not offer any support for her claim of privilege over the names of those she had conversations with, nor did she explain whether any conversations with minors were relevant to the case. Thus, he ordered the plaintiff to provide hard copies of the redacted Facebook files along with the names and towns of residence of those adults with whom she had relevant conversations; she could withhold this information for minors. If the defendants still felt that the production was not complete, the plaintiff’s counsel agreed to allow defense counsel to view the files in their entirety at her office.

As this case reveals, social media discovery requires a well-tailored approach. Printouts, screen captures, and archiving RSS feeds are all highly manual, time-consuming techniques. In addition to being difficult and costly, these techniques omit metadata critical in authenticating message streams. Similarly, using Facebook’s download option merely yields a data dump.

A better approach would have been to solicit the opinion of an expert familiar with advanced discovery technology and processes. In this particular case, an expert would have recommended using one of several specific tools and a process that would allow this plaintiff to collect and produce only relevant information such as posts from 2011 to the present for any matter relating to the allegations in her complaint. Such an approach would establish authentication and chain of custody, capture metadata, perform automated searching and indexing across multiple accounts and sources, and acquire the data in a searchable, producible format.

With an expert’s guidance and tools, the plaintiff would have been able to avoid issues that she faced during litigation and would be able to: (1) prevent producing irrelevant information; (2) avoid an undue burden; and, (3) protect her privacy along with the privacy of others who were not involved in the litigation.

Yevgeny Sorokin is electronic discovery and forensic consultant at Conduent. He can be reached at info@conduent.com.

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