Ready, set, GO! When litigation is threatened, a critical time period begins. You may only have a matter of days to investigate your opponent or your dispute on social media before savvy parties or witnesses change their privacy settings and shut you out. That means you need to be ready to hit the ground running instead of wasting precious moments wondering where to start or chasing your own tail with fruitless searches.
Why are social media investigations so challenging? They pose two entirely separate problems, both of which must be solved for evidence to be useful.
First, you need to find the specific person you’re looking for and determine what information they have online—and quickly. Second, you must defensibly capture the information you find in a usable and navigable format that is admissible in court. But why go through the hassle at all? Let’s consider why social media matters in ediscovery.
Social Media in Ediscovery: Why Do We Care About This Needle, Anyway?
Social media is critical in ediscovery largely because it has won a starring role in people’s daily routines. The Pew Research Center reports that nearly three in four U.S. adults regularly use social media channels. That use is led by YouTube, with 73 percent, and Facebook, with 68 percent. Fully two-thirds of U.S. adults use social media to follow the news, a trend that is likely to continue as politicians flock to Twitter and other social media channels to share their positions and platforms. LinkedIn reports that 85 percent of hires are found through networking, which increasingly happens online through its professional community. Specific social media preferences vary based on demographics, with younger generations more likely to use Instagram and Snapchat, but the overall trend toward social media use has permeated society.
And people aren’t just following others on social media—they’re uploading their own thoughts, pictures, and videos, sometimes offering a blow-by-blow account of both major and minor events in their lives. Active social media users share personal news about everything from a medical diagnosis or job loss to where they parked or what they had for lunch. This narrative is not an objective retelling, of course, but it does offer a rare window into the daily thoughts and activities of users—even after those people have become embroiled in litigation.
That makes social media a rich source of information for ediscovery, particularly in cases involving emotional distress, personal injury, products liability, or workplace issues. Even beyond those types of disputes, though, creative litigators who mine social media accounts can often strike gold—if they spring into action promptly.
Investigating on Social Media: Can You Find the Needle in the Haystack Quickly Enough?
For all of its value, finding useful information on social media can be like looking for the needle in a haystack, especially when you’re searching for someone with a common name, navigating privacy settings, and working against the clock.
Finding the right person and validating the profile. There may only be one Shia LaBeouf, but most litigants have more common names. That can make it difficult to identify the correct social media profiles. While limiting results to specific localities or adding search terms can help, the success of these methods turns on the strength and currency of the information in the subject’s profile. Worse, manual searches are time-consuming and subjective, prone to confirmation bias and other authentication flaws.
Nor do the problems end when you’ve found a likely profile: you still have to validate that the person you’re interested in actually authored the content you found. In one case, the court rejected the government’s social media evidence, noting that it “presented no evidence, direct or circumstantial, tending to substantiate that [the subject] created the Facebook account in question, authored the chat messages, or posted the photograph of bloody hands.” While the government offered supporting evidence—the Facebook profile bore the subject’s “name, hometown, and high school”—that alone “was insufficient to authenticate the online and mobile device chat messages as having been authored by” him. The more information you have to establish the link between your subject and the social media content you’ve found, the stronger your argument.
Navigating privacy settings. Accessing “private” posts adds a whole new wrinkle to social media searches. Calling this content private is already a bit of a misnomer; courts have held that even “private” posts on social media are subject to discovery if they are relevant to an issue in dispute in litigation. Discoverability aside, you won’t have much success looking for a needle unless you can actually get into the haystack to start digging around. Search tools that automatically log in to sites using provided credentials have a much greater chance of success than those that get hung up on login screens.
Working quickly and efficiently. Time is of the essence when it comes to identifying and capturing social media content: not only does it change day by day, but users may delete content or restrict access to it at any time. You don’t have time to waste dithering about looking under rocks for a social media profile or figuring out a search strategy. That’s where automated processes and trusted partners can help, especially when you’ve engaged their assistance before you need it.
But even when you do strike social media gold, your job isn’t done—finding the needle in the haystack doesn’t help if you can’t defensibly capture it and admit it as evidence in court. (Obviously by “it” we mean evidence from social media; an actual needle probably isn’t doing you much good in court unless you popped a button.)
Using Social Media Data: You Found the Needle—Now What?
This is why it’s critical that investigators, litigators, and ediscovery professionals work together to plan for court from the very outset of a case. To use the social media evidence you’ve found, you need to preserve and collect it somewhere safe, where it’s not subject to modification. But collecting dynamic social media evidence raises a whole new list of concerns. You’ll need to ensure that your proposed evidence has been identified and captured in a defensible, objective manner, that you’ve captured the full context of that evidence in a usable and navigable form, and that it’s admissible in court.
Defensibly identifying and collecting evidence. We already touched on the importance of objectivity in identifying social media profiles—but the need for defensible processes doesn’t stop there. Everything you do for court should be explainable, replicable, and free from bias. That’s one reason that scattershot social media investigations fail: even if the investigator kept notes on an inquiry, it can be impossible to explain how or why one query led to the next. A systematic approach is not only more thorough, but it’s also better defended in court. Your capture methodology for social media evidence should also be consistent—which can pose problems with dynamic content such as social media.
Capturing the full dynamic context in a navigable format. Today, nearly 95% of websites incorporate dynamic elements using JavaScript. The majority of web content requires interaction by the user, from drop-down menus and mouse-over text to videos and linked content. This is particularly true for social media. What’s the significance of 75 “likes” or comments on a Facebook post if you can’t see who contributed to the conversation or what they said?
Social media collections must be thorough and complete, capturing all the context on the page. Screenshots can’t do that, especially not quickly or efficiently. Nor can API capture methods. We recommend using fully navigable, native-format Web ARChive (WARC) files instead. With WARC files, you can navigate a captured website—social media or otherwise—as if it were live, watching videos, clicking through links, delving into photo albums, or checking out “friend” lists.
Ensuring that evidence is admissible. Even after you’ve verified that you’ve found the right profile and you’ve captured every drop of dynamic content available, you still need to prove that your capture methods are admissible and subject to authentication. We recommend working with a trusted third party who can testify about capture methods in court and who has no stake in your litigation; this builds in a level of security that’s hard to match with in-house investigations.
