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Five Tips for Managing Social Media and E-Discovery Collections

Like it or not, social media is now a workplace norm and presents new challenges for legal and IT teams responding to discovery requests. The myriad of social media sites, all with different retention policies, make it difficult to assess the size of the data and its content, when it must be collected and reviewed for legal and investigatory matters. Traditional collection tools can't search, preserve and collect social media data - which is stored in the cloud - due to its technical architecture.

E-discovery practitioners have developed processes to navigate these waters in an efficient and legally defensible way. Following are five tips for managing the legal and technical nuances of social media usage and e-discovery collections within corporations; and case study data to evidence how these can be applied to the real world.

1.   Metadata preservation. It is integral to e-discovery to preserve as much metadata as possible associated with all social media accounts and posts that may be relevant to a case. There are numerous tools on the market that "preserve" social media accounts, however these tools preserve the data in different ways and in different formats. When preparing social media data for a legal review, the manner in which the data is preserved is very important. The ability to index and search the metadata is paramount for cull-down purposes, and therefore must be a top priority at the preservation phase. 

2.  Review social media data alongside other electronically stored information. To determine relevance of any given set of social media data, it should be reviewed side-by-side with the other data sets that pertain to the case. Social media evidence must be considered in the full context of the case, not simply in a vacuum, or else critical evidence may be overlooked. Typically to do this, legal and IT teams will need to identify a review tool that has the ability to handle a wide range of data formats.

3.   Be prepared for security issues. When collecting from individual social media accounts, the e-discovery team will typically need to obtain cooperation from the individuals in question, in order to access accounts. Social media networks are increasingly adding second and third layers of authentication to tighten security for their users - often times, a password alone will not be enough to gain access.

4.   Collection methods must enable significant culling. The volume of data within any given social media account can be overwhelming and will typically require a significant amount of culling to uncover any case-related data. Simple web crawls or screen captures will make life difficult when the time comes to cull out posts that are not relevant to the matter at hand. IT and legal should collaborate at the outset of the case to ensure that the overall collection strategy and the tools used will be able to support cull-down on a large dataset.

5.   Organize, document and identify. It is difficult to know what social media data is viewable and by whom. It is important to identify potentially relevant social media sources and organize all of the accounts, custodians, keywords and date ranges that need to be preserved as early as possible. Unlike some other forms of electronic discovery, the opposing side may be able to view or access case-sensitive data on publicly available social media accounts.

To understand what this looks like in a real-life scenario, consider a recent case involving collection of data from multiple social media sites. This particular case was a mass e-discovery exercise across four custodians and numerous social media accounts, in addition to standard data sources such as email and phone records. Through working with the individual custodians in question to obtain full access to their social media accounts, data was collected from more than 10 personal accounts on networks including Facebook, Twitter and LinkedIn. From these accounts, the discovery team collected each individual item and all associated metadata (versus collecting the entire dataset for review), making it easier to cull out non-responsive posts based on date, keyword, or author. All metadata, including likes, shares and comments, was preserved and produced to validate the relevancy and totality of the data and provide the investigatory team with a rich set of data with which to move forward on the matter.

Needless to say, social media e-discovery is a complex and ever-changing terrain. Understanding the technical nuances up front, and preparing for potential pitfalls will help legal and IT teams better handle the investigations and e-discovery collections that will inevitably arise as this form of communication continues to proliferate within the workplace.

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