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e-Discovery and Social Media: what do you know that you did not know you knew?

View profile for Casian Sala

It’s a rare idle moment, and you decide to share an Instagram snap of a dinner date to your Facebook page. You’re looking good, the lighting’s subtle, your date is sipping an elegant Martini. Smiling at the memory, you turn to weightier matters, and think no more of it.

What you might not realise is quite the depth of information you have shared. That first Instagram upload was linked to various other social media accounts – the Foursquare login you keep forgetting, the automatic posting to Twitter – and embedded in it is enough ‘metadata’ to tell quite the story. There’s a date-time stamp: someone, somewhere, knows just when you drank that Martini. There’s location data: someone, somewhere, knows the restaurant. Sure, you didn’t tag your date, but all those silent ‘likes’ are a hefty clue.

Harmless enough, if fodder for any soap-opera scriptwriter – but what are the implications for e-Discovery, and the inclusion of social media in the scrutiny?

Identifying, collecting, collating and sharing electronically stored information is fast becoming a fixture of pre-trial preparation. The range of information which can be subject to e-Discovery orders is vast, and will only continue to grow as technologies keep pace with our appetite for information sharing. Emails, documents, presentations, databases, voicemail and video - all are open to probing.

In December last year it became apparent that social media would not be exempt, when Twitter failed to overturn a court order to share Tweeted information. And only the most naïve would expect Facebook – as much a hotbed of intrigue as a means of sharing Christmas cake recipes – to be immune.

But firms and practitioners must proceed with caution. The inclusion of social media accounts in an e-Discovery exercise must take into account everything it might uncover, including all that hidden metadata. Failure to build metadata implications into social media e-Discovery risks not only a baffling raft of superfluous and unhelpful information, but actually hindering effective legal action or prejudicing a trial.

It is expected that there will be increasing warnings to move away from a kind of ‘fishing expedition’, in which social media data is haphazardly trawled in the hope of uncovering relevant information. E-discovery must be tightly defined with a clear end in view, in order to streamline the exercise and to protect against unwarranted invasion of data privacy.

Prior planning is key. It is essential that firms engage litigation support partners who do not simply carry out their e-Discovery requests, but advise and caution. At Legastat, we are professional experts in all aspects of litigation support including e-Discovery and e-Disclosure, and with our Electronic Discovery Reference Model (EDRM) can offer consultancy advice to firms keen to ensure their e-Discovery activities best serve their client.