By John Patzakis
As succinctly noted by The Florida Bar Association in its publication, Florida Law Journal: “Social media is everywhere. Nearly everyone uses it. Litigants who understand social media — and its benefits and limitations — can immeasurably help their clients resolve disputes…it is inevitable that the social media accounts of at least one person involved in a dispute will have potentially relevant and discoverable information.“ “Social Media Evidence: What You Can’t Use Won’t Help You” Florida Law Journal, Volume 88, No. 1.
The high volume of relevant social media evidence means that lawyers are under an ethical duty of competence to address and account for it in their litigation and compliance matters. For this reason, there has been a strong demand for social media evidence collection software and services. However, Facebook, the most widely used social media platform, rolled out a completely new interface and data format in the latter part of 2020 for all their 2.4 billion users. This broke every social media evidence tool on the market, causing a major disruption of eDiscovery and compliance workflows. In response, social media evidence collection tools either exited the market, changed their model to services, or provided flat file screen shots as their output.
Flat file screen shots of social media are of very limited value, as what they generally entail is a screenshot pdf image file without searchable text or metadata, other than what is visible on the image itself. For this reason, X1 put in the historical and ongoing work and R&D investment, so that its users would have native post-level collection and parsing to ensure accuracy, key metadata collection, court authentication, and evidentiary completeness of the collected data. Nothing short of those capabilities are acceptable.
To further explain why screenshot will not suffice, here are 5 reasons why native, post-level collections are essential when preserving and seeking to produce social media evidence for judicial purposes:
- Defensibility and Authentication of Evidence:
Many courts have rendered “smoking gun” and other key web-based evidence worthless because the proponent offered a simple printed copy of a social media webpage, and thus failed to meet evidentiary authentication requirements. (See Moroccanoil vs. Marc Anthony Cosmetics, 57 F.Supp.3d 1203 (2014), (Facebook screenshots inadmissible in a trademark infringement without supporting circumstantial information). Commonwealth v. Mangel 181 A.3d 1154 (2018) (Court disallows Facebook screenshot as evidence due to lack of supporting metadata),
Another key decision is Edwards v. Junior State of America Foundation, No. 4:19-CV-140-SDJ, (US Dist. CT, E.D. Texas April 23, 2021), which applied the best evidence rule to social media evidence. The court ruled that the metadata and full context of the native files were essential to satisfy the Best Evidence Rule. The court held that screenshots were not an output that accurately reflected the substance and context of the native file, since they could not show that the messages were authentic, nor could they “be used to prove that (the Plaintiff) sent the Facebook Messages contained in the screenshots.” Failure to produce the native files prejudiced the Defendants “of the ability to substantiate or refute the authenticity of the alleged messages.”
With native post-level collection, all critical metadata is captured and preserved, in full context, and post-level hash values are generated at the point of collection. For these reasons, X1 Social Discovery is the gold standard for evidentiary authentication of social media and web-based evidence.
- Text Searchable and Sorting of Posts
X1 Social Discovery automatically indexes all text and metadata of all collected social media posts, comments, and web pages at the time of collection. This enables text and filtering across up to tens of thousands of social media posts, allowing the examiner to immediately hone in on the relevant evidence. Screenshots must be processed further with Optical Character Recognition (OCR), a process which is unwieldy, expensive and not workable in large volume matters.
- Comments Provided in Line and in Context
Comments to social media posts are often critical evidence. With screenshots, associated comments to a post are not collected, or at best are truncated and not displayed inline. Conversely, post-level native collection of social media is ideal, because it enables the collection of the social media post as a parent item with all associated metadata and comments preserved and displayed inline. This contextual display is preserved throughout the investigation process, including through the generation of robust load files that preserve date stamps, other key metadata, and family post identification with associated comments.
- Analytics Support
Analytics for investigation and eDiscovery purposes, such as link analysis, clustering and technology assisted review (TAR), operate on the text and metadata of the subject documents, emails and social media posts. Resorting to screenshots, including flat file pdf image captures, effectively prevents the use of game-changing analytics in your case. To take full advantage of analytics for social media and web-based evidence, native, post-level collections are essential.
- Seamless Upload in Review Platforms (No processing needed).
Some believe that screenshots of social media and web-based evidence save time and money. Nothing could be further from the truth. Screenshots generate flat images that do not enable effective text extraction, and it is impossible to cull, process, and effectively output to attorney review platforms such as Relativity. Because of these limitations, litigants must incur dramatically increased processing costs and time delays to make the data workable in an investigative or litigation workflow. For instance, the images must be run through OCR, the various requisite metadata fields must be manually entered, and the truncated screen shots reassembled into context so they appear and read as they did in their original state, as well as other painstaking steps. All this will typically cost up to tens of thousands of dollars in additional processing fees.
Employing more automated means, such as X1 Social Discovery, enables the examiner to quickly collect entire web pages and publicly available or otherwise properly accessed social media accounts, which can be hundreds of pages long. This comprehensive and thorough collection allows the examiner to collect far more potential evidence, preserving all relevant metadata, and having that evidence be immediately searchable and reviewable in a highly effective integrated review and analytics platform. All this enables a very fluid and scalable workflow that dramatically reduces downstream processing and review platform upload costs.
X1 Social Discovery is the only eDiscovery solution to provide post-level parsing for Facebook timeline posts in the new Facebook format, as well as for Twitter feeds. To learn more about this important functionality, please contact us for more information.