By John Patzakis
Social media and other web-based data is relevant to nearly every legal case and investigation. 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 last year for all of 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 to this major technical disruption, all other social media evidence collection tools either exited the market, changed their model to services, or provided flat file screen shots as their output…except for X1 Social Discovery.
X1 put in the work and R&D investment, so that its users would have 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.
Flat file screen shots of social media are of limited value, as what they generally entail is a screenshot image file without metadata, other than what is visible on the image itself. This is problematic as there are many important but hidden metadata fields associated with social media posts that need to be parsed and populated into the appropriate fields associated with the post. Also, flat images do not enable effective text extraction, and it is impossible to cull, process, display, and apply analytics to flat file outputs in attorney review platforms such as Relativity. Associated comments to a post are not collected, or at best are truncated and not displayed in line.
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 will enable the automated generation of robust load files that include date stamps and other key metadata, extracted text for searching, family post identification and associated comments. Additionally, post-level hash values can be readily generated at the point of collection for evidentiary authentication. All this enables a very fluid and scalable workflow that dramatically reduces downstream processing and review platform upload costs.
The importance of this distinction was clearly underscored by the court’s decision in 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 plaintiffs’ had sought to offer screenshots as evidence of the Facebook communications instead of the deleted native files. 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.” In a key passage the court states:
Here, the screenshots will not suffice as an “original” because the screenshots are not an “output” that “accurately” reflect the information. Only native files can ensure authenticity. Additionally, although the Best Evidence Rule allows for an original “photograph” to prove the contents of the photograph, this does not mean that the screenshot here can be used to prove that Harper sent the Facebook Messages contained in the screenshots.
Edwards demonstrates that the collection and preservation of full native social media posts is vital to both that evidence’s authentication and obtaining the full context and substance of the posts under the Best Evidence Rule. The court found that screenshots, which truncate social media posts and omit key metadata, do not suffice. As a result, attorneys should be aware that courts are unlikely to find that screenshots alone are sufficient to authenticate a social media post and will likely insist on the native files.
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.