The eDiscovery landscape keeps evolving faster than we think. It is a fact that every single day, we create 2.5 quintillion bytes of data—so much that 90 percent of the data in the world today has been created within the past two years. This data originates in more than just emails or computer hard drives. Nowadays, posts to social media sites have become big data.
The purpose of social media sites is to create virtual communities and networks. Internet-based applications depend on mobile and web-based technologies to assist with the creation and exchange of user-generated content. During litigation proceedings, that content may be discoverable.
Because of its nature, social media can pose challenges in managing and identifying records, protecting personal information, and ensuring the security of information and systems. Therefore, when isolating the data to be collected, ask whether the company has a social media presence, and who is involved in the matter at hand. If parties to the proceedings have their own social media accounts, and share valuable information, the social media platforms they’ve used will be subject to a forensic collection.
The next big question is: how to recognize when social media information is admissible? Courts have been clear on the issue, based on Fed. Rule of Evidence 401: all evidence must first be deemed relevant before being considered admissible. This principle applies to both public and private information. Consider privacy settings not so “private” since the Romano v. Steelcase (Sup. Ct., Suffolk County 2010) decision. By creating a social media account, an individual consents to the fact that the personal information posted on that site will be shared with others, notwithstanding any privacy settings, and “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”
Finally, searching and indexing should be an ongoing process to facilitate the collection. Searching will help prevent extra data charges, extra review costs, and guard against the use of non-responsive data. However, always think through the limitation of collections. Work closely with your forensics team to devise the most cost-efficient strategy, and cover all grounds to avoid any ugly surprises later on.