By John Patzakis
The Sedona Conference® (“TSC”) has just published the 2nd edition of their very useful Primer on Social Media. Sedona is a very influential organization so this is an important development further underscoring the importance of social media evidence. According to TSC, the Primer series “provides best practice guidance on the corporate use and management of social media, as well as their preservation, collection, and production in the form of electronically stored information (ESI).”
The 93 page second edition is a valuable resource and a must read for every legal and eDiscovery practitioner who address social media evidence. For purposes here, I have outlined 5 particularly interesting takeaways:
- Attorney’s Duty of Competency Requires Focus on Social Media Evidence
TSC’s Primer notes that “ethics rules require lawyers to understand the impact and consequences of social media,” and that “Counsel is responsible for reasonably investigating client social media content to identify relevant information and provide oversight of the search and production of such information. (at pg. 26).” The Primer tracks and cites ABA model ethics Rule 1.1, noting that “counsel must be competent (or partner with a competent lawyer) to facilitate appropriate discovery of [social media evidence]. (at pg. 27)”
The Primer also features a good discussion of Lester v. Allied Concrete Company, where the plaintiff’s attorney did not meet his ethical obligations and instead blithely instructed his client to rid his Facebook page of damaging evidence, resulting in what many attorneys believe is the most severe eDiscovery court sanction imposed upon a lawyer. As the Primer reinforces, social media is highly relevant as evidence, and it is thus important that attorneys, paralegals, eDiscovery consultants and investigators proactively seek out such evidence, ensure its preservation, and include the investigation in their standard processes and checklists.
- Static “Print Screen” Captures are Problematic
As we have noted many times on this blog, print screen is not best practices for collection social media and other web-based evidence. TSC’s Primer provides important guidance on this point: “Printing out social media data has its evidentiary limitations, as a static image does not capture the metadata of the image, other than whatever information may be viewable as part of the screen shot. As a result, static images may result in an incomplete and inaccurate data capture that is hard to authenticate,” and that “[a]ny such collection will most likely be a visual representation that does not include metadata, logging data, or other information that would allow the content to be easily navigated and used. (at pp 45-46)”
- Extensive Discussion of Evidentiary Authentication for Web-based Evidence and Rule 902(14)
Noting that “[a]uthenticity is a key issue that a court must consider in determining the admissibility of social media evidence,” the Primer dedicates an entire section to the subject. This section features a good overview of case law, summarizing that “courts generally seem to agree that the mere testimony of the person who downloaded or printed out social media content, without more, is insufficient to establish its authenticity.” As such, the Primer advises that “parties proffering social media content should make sure they develop and present foundational evidence beyond simply printing or down-loading the content from the internet.” (at pp 85-86).
Among the authentication methods outlined by the Primer is Federal Rule of Evidence 902(14), which provides that electronic data recovered “by a process of digital identification” is to be self-authenticating. The Primer notes that with a proper social media collection process, FRE 902(14) will enable most litigants to utilize written certifications instead of costly trial testimony of a forensic or technical expert. But again, only where best practices are employed. For more resources, this blog has extensively addressed FRE 902(14). (See here).
- Negative Peer Review of Facebook’s DIY Function
When considering what constitutes best practices for collection of electronic evidence, courts and counsel generally look to industry peer review and publication under the Daubert Standard, which includes those factors, among others, as a framework for judges to determine whether scientific or other technical evidence is admissible in federal court. Sedona Conference publications are among the most important peer review in the eDiscovery world, so it is notable that the Primer says this about Facebook’s built in “Download Your Information” function:
Although the information from the Facebook download can perhaps be used as evidence in particular situations, it may be it may be preferable to have a vendor obtain the data with the appropriate tools for accessing and then reviewing the information in a manner that includes available metadata.
The Primer goes on to outline how certain data may be omitted by Facebook’s DIY and thus and the use of provider-controlled export tools, “may raise preservation and collection issues,” and that as those tools are often modified or updated without notice or documentation “the frequent changes to the export tools pose some risk that counsel should consider.” (at pp 47-48)
- Positive Peer Review Mention of X1 Social Discovery
The Primer does offer positive peer review of technical solutions for social media eDiscovery, noting that “Vendors have developed technology to allow certain content to be collected in a way that preserves the content and captures various metadata fields associated with social media data. Properly captured, these metadata fields can assist with establishing the chain of custody and authentication. They can also help to facilitate more accurate and efficient data processing and review.”
In the same section, The Primer provides this description of X1 Social Discovery affirming industry general acceptance:
“One of the popular social media discovery collection tools is X1 Social Discovery, which has API collection tools for Facebook, Twitter, YouTube, Instagram, and Tumblr, along with the capability to collect webpages and email from other providers.” (at pg. 49).
A full copy of TSC’s Primer on Social Media can be accessed here.
For more information on X1 Social Discovery, please see here.