An increasing number of lawyers are finding themselves looking to social media for pertinent photos, videos, posts, and messages. With more than 150 social networking sites and at least 26 live messaging apps to investigate, legal professionals face not only a wide variety of different collection policies, but also an equally diverse amount of hurdles to account for when accessing and preserving this data.
1. Convert Social Media Evidence into WARC Files
Save websites and website pages in WebARChive (WARC) format.
WARC files, display website or web page mock-ups created by prior-saved web crawls, can accurately capture how a website or page looked at a point in time—with working links, video, and dynamic elements all included.
2. Streamline Collection Process with APIs
With social media APIs, parties can access specific social media platforms and messaging apps to pull ESI content for later review. Users can not only pull post and video metadata from user profiles, but they can generate hash reports that can be used to satisfy the Federal Rules of Evidence’s new ESI self-authentication options in FRE 902 (13-14).
API-driven collections are considered defensible, and most of the major platforms such asYouTube, Facebook, Slack, Instagram and Twitter, support API collections.
3. Be Careful When Requesting Direct Access to Social Media Profiles
Requesting a user’s login credentials, however, isn’t simple. Attempts to access accounts directly could be thwarted by multifactor authentication, create security issues for other user accounts using the same password, open the door to spoliation by the requesting party, and potentially create the inaccurate presumption that the user’s entire profile is subject to discovery.
On top of this, archived profile downloads—if offered by the social media provider—are usually not reliable since you cannot restrict the types of information you download, control how the information is presented, or prevent any unilateral changes and updates the provider may make to the profile data. All these factors can lead to preservation issues for your ESI evidence.
One work around solution noted by Logikcull is “for attorneys to either request or submit a WARC version of the user’s profile page, which allows other parties to access the user profile without surrendering any login credentials. Alternatively, parties can request a third-party vendor to access the profile via the platform’s API, run searches based on a list of mutually-agreed-to keywords, and extract relevant data for all parties to review. “