Peer to Peer Magazine

Fall 2018

The quarterly publication of the International Legal Technology Association

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Page 56 of 75

58 Social Media is the New Email Today, social media is universally used by people, companies and even governments. Social media users of all ages can target audiences of one or billions. It is not just for sharing posts and staying in touch with family and friends. Rates of user adoption of platforms such as Slack are overtaking the use of email in companies around the world. Companies use Facebook Workplace to help employees stay connected and engaged with company events and personal interests. Social media was once a novelty; now most people view it as a necessity to stay connected to peers, family and friends. Social media's proliferation means it is now a staple source of critical electronically stored information (ESI) in litigation and investigations. Because it is changing constantly on the backend, defensible collection practices are a moving target for legal practitioners. Case teams must take a nuanced approach to defensibly identifying, preserving, collecting and producing individual elements of social media to meet their client's discovery obligations. Scoping Elements of Social Media The elements of social media that will define scope are different for every collection and case. Potential elements can include webpage links, documents, photos, posts, logins or geolocation data. Content must be captured in a manner that enables triers of fact to be certain of its authenticity. For example, a photo on a Facebook page with no exif metadata displaying the date or place it was taken may be insufficient to prove up the facts. Parties may need to parse individual webpage elements, and they may also need to be able to demonstrate the same interactive experience that was available on the live website. Triers of fact may need the interactive experience of historical webpage navigation to fully appreciate the context of the evidence. These considerations will drive decisions about what tools to use to preserve and produce social media. Proportionality will also factor into such decisions. High stakes cases with critical interactive webpage evidence will almost certainly need a robust preservation and production tool and workflow. Conversely, a single Linkedin post or message may be sufficiently preserved by a user initiating an archive request and downloading his own data. We asked questions of Evan Gumz of Hanzo, David Horrigan of Relativity, and Robert Fried of Consilio, to get their input on how they help clients deal with social media in discovery. Here is what they had to say. Social Media Considerations and Challenges in eDiscovery B Y D E R E K J . B O O R A N D J A N I C E J A C O

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