Now that Taylor Swift has supplanted Kim Kardashian West as the queen of Instagram with 50.6 million followers, will people stop talking about her and the rest of the Kardashian clan? Of course not. As of October 2015, Kim has 48.8 million Instagram followers, not to mention 35.9 million on Twitter (for perspective, 20.4 million follow the New York Times and 20.2 million follow CNN). But a more perplexing question remains: why is this family so popular? Aside from the fact that they are famous for being famous, we may never understand.
Similarly, many organizations remain perplexed as to why the e-discovery industry constantly talks about social media. Is its popularity among e-discovery pundits simply the result of its popularity among users? While more than 65 percent of adults now use social media—a tenfold jump over the last decade—there is more to it. Organizations have many reasons to be concerned about this channel that is quickly becoming adults’ preferred medium of interaction.
As a vehicle for internal messaging, customer outreach, and personal communication, social media can be a rich source of important evidence for litigation and investigations. At the same time, it can also pose vexing problems for clients and their counsel, given its variety, volume, and velocity. Therefore, organizations should take a number of steps to prepare for e-discovery of social media, including these:
- Determine which applications are in use in your company and on your custodians’ mobile devices.
- Cast a wide net. Go beyond just the most popular sites, such as Facebook, Instagram, Twitter, and LinkedIn, and think about sites that cater to narrower audiences, such as Flickr, Snapchat, and WhatsApp.
- Use search engines to mine for information that may not be directly available from social media sites.
- Consider whether custodians may have accounts under pseudonyms other than their legal names.
- Determine what types of potentially responsive data may be involved, including text, chat logs, photographs, videos, linked content, and audio files, and plot a strategy for their collection and review.
- Develop a strategy that ensures the collection of metadata, including time stamps and geolocation, as well as that preserves the chain of custody.
- Before collecting data, consider privacy and ethical issues, including local privacy laws, the duty of confidentiality, and bar opinions involving social media.
- Include social media evidence in your legal hold.
- Be prepared to authenticate the data if necessary, whether through direct testimony, forensic evidence, subpoenas, and the like. Merely providing a printed copy of a social media account is likely not enough.
- Continue to monitor social media channels during the course of the litigation or investigation, and watch for spoliation or altered privacy settings.
Social media is about more than selfies, despite what the Kardashians might have you believe. Despite its ubiquity, it is a key form of evidence that should not be overlooked. Including social media evidence in your litigation readiness plan will help prepare you to meet production deadlines, establish the authenticity of the records, and lower the risk of spoliation.
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