It is only a couple of weeks since I last wrote about the importance of social media in eDiscovery / eDisclosure (When the car sneaks on you and your social media betrays you).
I come back to it so quickly, partly because its importance cannot be overemphasised, but mainly to give you links to two articles which both emphasise the point and give practical examples of its application.
The first is (another) article by UK civil procedure expert Gordon Exall, whose Civil Litigation Brief gave me the opening for my last article.
Gordon Exall’s newer article is called Civil procedure back to basics 69: social media and the litigator: a recap. It is a summary (and not a short one because there is a lot to say) of recent cases in which social media has featured, with pointers to other sources. It includes examples from other jurisdictions (the US and Canada, for example), and the points emerging from the cases are applicable in most jurisdictions where discovery is required.
While some of the cases are new ones, the principles have been set out for some time, not least by me. Gordon Exall is kind enough to quote from my SCL predictions for 2015 (and therefore written in 2014) in which I said:
“This checklist idea will be encouraged by a case in which the lawyers will simply forget to ask their clients or their opponents about some source of electronic data whose absence becomes painfully obvious at a late stage in the proceedings. This might be an apparently trivial social media source like Twitter, Facebook or LinkedIn or something else which makes the lawyers suddenly realise that all this talk about ‘the cloud’ embraces everyday applications which people use to communicate. It might be a photograph whose metadata pins a witness to a place and a time. These are no less a ‘document’ than an e-mail or a Word file. The problem won’t come simply because of a formal defect in compliance with the rules but because the overlooked source contains evidence which turns the case”
As predictions go, this was not a difficult one, even in 2014. It is, nevertheless, quietly satisfying to be reminded that I said it that far back.
The second article of interest is published by ILTA and called Social media considerations and challenges in eDiscovery. It consists of interviews with three people who know about the subject – Evan Gumz of Hanzo Archives, David Horrigan of Relativity, and Robert Freud of Consilio.
One of the things connecting the two articles is the subject of a social media questionnaire which was suggested by me in my article of 2014 and which recurs more than once in the ILTA article. The latter is worth reading for its practical suggestions about recovering and using social media data. The suggestion about using a questionnaire, not least as a prompt to remember the subject at all, is perhaps the most important single point.
The words “reasonable” and “proportionality” also recur, reminding us that no one asserts that all social media from every custodian in every case is important. If you don’t think to ask about it in the first place, however, its importance may either pass you by completely or hit you when you are least expecting it at a late stage in the proceedings.
I will pick one quotation to give you the flavour of it. David Horrigan says this:
Who needs a private eye when you can get all the data you need from Facebook?
In fact you will usually need more than the bare Facebook posts. An investigator or a lawyer gets a head start for more conventional enquiries, however, if the suspect or witness (or their own client perhaps) has laid a trail on social media.