To an audience still struggling with the idea that an email is a “document” for eDiscovery / eDisclosure purposes, it comes as something of a shock to be told that a tweet or an entry in Facebook or LinkedIn is potentially no less discoverable than a Word document.
I have been writing and talking about this for some time now, most recently in a webinar with iCONECT called Social Communication: is there anything worth requesting? I covered it again at ILTA INSIGHT (the Agenda is here) in London on 14 November on a panel called Non-traditional sources of electronic evidence in the company of Fiona Morrisson of Allen & Overy and barrister Damian Murphy.
Reading around the subject in advance of the iCONECT webinar, I came across an article on the ABA Journal web site called 6 Tools to Help Firms Track Social Media. It referred to a Fulbright conclusion that more than 41% of US law firms reported having to preserve or collect social media data for eDiscovery purposes. Whilst it is true that US lawyers collect anything which moves and much more besides, the rest of us have to accept that the growth of social media, and the shift of communication from email to more volatile forms of communication, must inevitably take discoverable information with it.
The range of platforms which carry such communications grows every year. Ralph Losey is quoted in the ABA Journal article as saying that Facebook, LinkedIn and Twitter are the ones which matter.
As its title suggests, the article refers to a number of products and services designed to help with social media collection including X1 Social Discovery, Hanzo Archives and a service offered by FTI Consulting – there is an interesting Metropolitan Counsel interview with FTI’s Daniel Roffman on this called Data Collection in a Social Media World.
Before you reach that stage, you have to apply your mind to the possibility that social media sources might include something which ought to be disclosed – not just because it may be required by your rules but because it might actually contain information which could win or lose the case.
That falls far short of saying that every scrap of social media data must be collected in all cases – that valuable eDiscovery / eDisclosure tool the brain will interpose a proportionality test based on good old-fashioned interrogation of custodians and others who might know what potential sources exist. Just don’t forget to ask them.