When it comes to litigation, the discovery of email is commonplace. The technical details of producing emails for discovery aren’t as nuanced as when it comes to social media discovery. Before we get lost in the reeds with social media discovery, it’s relevant to get to a more straightforward definition of social media. Social Media is the overarching name given to many different social platforms like Facebook, Instagram, WhatsApp, to name a few.
1. Not all social media is the same.
Facebook, Linkedin, Twitter, Instagram, and YouTube are the standard and most talked-about social media platforms. Other than Linkedin, that still retains a more professional networking focus, Facebook, Twitter, and Instagram bridge both personal and professional.
WhatsApp, Snapchat, and others are messaging applications. While Slack, Microsoft Yammer, and others fall under the messaging and collaboration applications with a professional focus.
All of these can fall under social media discovery, so it’s essential to understand each of their functions.
2. Relevant reasons to include social media in your case discovery.
Postings on social media showcase the party’s physical and mental capacity after a procedure, key event, or accident. It also shows their whereabouts, thus indicating what they are up to or an alibi. Messaging platforms reveal information contained in text messages, helping to clarify the nuances of a case. Social media posts can either make or break a case, as folks will often share more intimate information through social media than they would via email. Not to mention that pictures are worth a thousand words and photographs posted on social media can provide robust evidence.
3. Constraints when requesting social media files.
If your request for discovery is too broad, you will be met with some challenges. When requesting social media information, you have to focus on the relevant content you want and be prepared to explain why it’s appropriate and how proportional it is to your case. Even though there is no privacy privilege for social media content, many courts have been particularly cautious about the expansive discovery of anything posted on social as it may affect the party’s emotional state.
Even once the social media content is obtained, it’s necessary to ensure that it can be authenticated for use, as social media accounts can be falsified, hacked, cloned by an imposter. Social media content is not self-authenticating, and other evidence is necessary for it to be admissible.
4. Knowledge of the technology behind each platform.
It’s important to have some understanding of the production format that each platform affords you. Messaging platforms may be more accessible, as just the text from the conversation will suffice. But Facebook and Instagram, for example, will require a different approach with screenshots to maintain how the information looked in that platform. Other platforms, such as Snapchat have limited archive of the information, so may require a more in-depth way to access information.
5. Preserving relevant social media content.
First and foremost, your client must preserve the relevant social media content. Many individuals are often surprised to find out that there’s no legal privacy privilege for their social media content.
Learn what social media platforms your clients use and how they use them, and warn them not to make any changes or delete anything, because failing to preserve social media evidence can have severe consequences. There have been cases where the individuals delete or modify their social media content and end up facing sanctions for the spoliation of evidence.
Lastly, social media evidence must be handled as any other evidence. But keep in mind that social media evolves and changes faster than the speed of the law, so it’s essential to stay abreast of this shifting landscape and be in the know of what’s possible in terms of the technology behind securing the reliable evidence you need for your case.
That’s why T-Scan is here to help you discover what your claimants put online. Learn more about our Social Media Records here.