In the past, it’s been common for people to dismiss social media as being utilized primarily by Generation Z youth only but that isn’t the case. Social media has become engrained in how people network, communicate, and socialize outside of traditional communication methods such as calls, emails, and texts.
Another reason social media has been ignored by litigators is that it’s been viewed as an inconvenience to collect and produce, both for the forensic examiner and custodian on the receiving end of the collection. While in earlier years this may have been more true, in today’s legal landscape there are various ways to effectively preserve, authenticate, and produce social media ESI in a defensible manner.
So what exactly is social media?
According to Merriam-Webster, social media is defined as “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos)” . For this blog post, we are specifically going to be focusing both on the overall social media landscape as well as the social media platforms that fill the space.
It is also important to note the rise of ephemeral content in social media platforms. In recent years social media platforms such as Instagram, Facebook, SnapChat, and TikTok to name a few have rolled out ephemeral content. This is content that is only viewable for a temporary period of time before it disappears. This commonly takes the form of “stories” which are rich media like videos and images with a 24-hour timer on them, once the 24-hour period is up the media is no longer publicly viewable. The same goes for live videos, once the livestream is over the stream is no longer available unless the original creator shares the recording of the livestream.
In one of our past posts we covered the “Top 10 Social Media Platforms Ranked by Monthly Annual Users“, since then these platforms have still held true to take up a dominant portion of the social media space.
What type of content is typically shared on social media?
Naturally, the type of content shared on social media is dependent on both the individual creator as well as the platform. As you’ve probably noticed, different social media platforms serve different audiences and objectives. For example take Instagram and LinkedIn, while LinkedIn is primarily for business networking and professionals, Instagram is more of a creative outlet for personal expression.
However, there are some common types of content that is shared across all platforms (given the platforms capabilities i.e. livestream, stories, etc.) to be aware of.
- User created posts
- User interactions: likes, shares, reactions
- Comments and replies
- Direct messages
- Image & video stories
- Testimonials & reviews
- Links to external content
- User profile content
The Duty to Preserve Social Media
When it comes to preserving social media data, the burden falls on the party that the social media ESI has been requested from. The National Center for State Courts puts it as “The responsibility to preserve—like the duty to produce—rests in the first instance with the party from whom the ESI is sought” . They go on to state that the duty to preserve extends to all relevant ESI. That seems to be a common understanding when it comes to social media discovery, if it is relevant to the case then it should be preserved and collected.
Litigators should look at social media discovery through the same lenses that they look at email and mobile device collections. Social media discovery should be considered throughout data mapping and information governance stages as it holds an important role in the overall scope of ESI.
Triggers for Social Media Preservation
The triggers for social media preservation are the same as those for other forms of ESI. If there is an anticipation or awareness of upcoming litigation then the duty to preserve is present . It’s important to note that this can be before a legal hold notice or lawsuit is even filed.
When thinking about what to preserve, it’s best practice to preserve social media evidence promptly and thoroughly. This should also be done with a priority of capturing metadata and preserving in a verifiable way. This means using software and tools that are specifically designed for social media preservation to make sure you are creating archives of the full content rather than screenshots that might be missing metadata or have cropped part of the message.
During the preservation, good areas to look preserve range from posts, messages, attachments, media, and contacts, to IP logs, user access logs, and timestamped entries.
Keep an eye out for Part 2 of this blog post which covers the different rules that play a part in ESI preservation and production, various methods of preservation, and considerations for social media discovery.
 “Social Media.” Merriam-Webster, Merriam-Webster, www.merriam-webster.com/dictionary/social%20media.
 “Appendix E: Best Practices for Courts and Parties Regarding Electronic Discovery in State Courts” Civil Justice Initiative – National Center for State Courts, https://www.ncsc.org/__data/assets/pdf_file/0018/25722/ncsc-cji-appendices-e.pdf.
 “Data Preservation – Basics of e-Discovery Guide.” Exterro, www.exterro.com/basics-of-e-discovery/data-preservation.