August 20, 2014
We all know how pervasive social media is today. And we should be aware of how much personal data is recorded and accessible from social media. Heck, we’ve written quite a few posts talking about just that.
Naturally, the massive volume of data available from social media has been the subject of countless discovery requests over the years. And the law and the courts are only just beginning to get a grasp on both the technology and how the law applies thereto.
At the 2014 International Legal Technology Association (ILTA) Conference, I was able to attend a session that was all about social media discovery entitled, “What Happens on Facebook Doesn’t Stay on Facebook: Social Media Discovery Tools.”
The presentation wasn’t actually just about Facebook, nor just about social media, but rather, included sections discussing capturing data of specific websites along with discovery of webmail.
The first section, though, was about Facebook discovery. A lot of the information wasn’t new to me, particularly with regards to the broad scope of information that Facebook records from its users (posts, likes, tags, location data, login time, IP addresses, changes in privacy settings, additions and removals of friends, etc).
But what was new to me were some of the issues surrounding the deletion of Facebook posts. The presenter gave an example of a scenario in which one party deleted some of her own Facebook posts that were relevant to the case in which she was involved. The other party discovered the deletion – because the other party’s wife was Facebook friends with the woman in question – and brought it to the court’s attention. The court ended up sanctioning the party behind the deletion with an adverse inference – that is, the jury can infer that the evidence would have been adverse to the party responsible for the deletion, and can further adopt the other party’s reasonable interpretation of what the post would have said.
Obviously, you should never instruct your clients to delete relevant Facebook posts. Someone, somewhere, has a record of it, and doing so will very likely result in sanctions or other adverse action. Instead, your clients need to understand that once they put something on social media, it’s there for good, and there’s no going back.
And that can create problems in situations where deleting a post is the prudent course of action, such as in defamation cases. The presenter gave another example about one person making a defamatory comment on social media about his neighbor. The defamer’s attorney instructed him to delete the post. However, although this is prudent legal advice, the attorney should also ensure that the post is preserved in some form before it is deleted.
The presenters also covered a variety of different methods of capturing a Facebook page, including creating a PDF and downloading the webpage itself. Given the raw amount of data available on Facebook pages, the presenters cautioned to be specific in requests about which pieces of data are requested.
Speaking of capturing data online, the session also covered capturing web pages, and the importance of determining what is needed from such a capture – just how the website looks, or the metadata associated with it. The presenters also stressed the importance of collecting the website as it appears when it was originally accessed—including any graphics and videos embedded on the page – in addition to ensuring that the capture is completely accessible offline; that is, that no piece of the page requires a connection to the Internet, and that the page is completely cut off from the Internet such that it cannot be modified by updates to the original webpage.
Overall, the presentation was very insightful into the evolution of social media discovery, but the session ended with the important reminder that social media is the Wild West – in that the law behind it is still being settled and standardized.