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The social media landscape continues to grow with each passing year. This year, the total number of social media users increased from 4.2 billion to 4.62 billion. And further growth is expected next year and beyond.
As more and more people and businesses connect to social platforms, legal teams must remain up to speed with the latest trends and ramifications. Keep reading for an overview of eDiscovery, how social media fits into it, and where the social media landscape is heading.
What Is the eDiscovery Process?
The legal eDiscovery process involves finding, extracting, analyzing, processing, and sharing electronically stored information (ESI) in a legal setting. eDiscovery most commonly occurs during a legal proceeding like a civil court case. However, eDiscovery also occurs during federal investigations and audits.
During a civil proceeding, eDiscovery starts immediately after the initial meet and confer session between the two opposing parties. At this point, the teams should have a general understanding of what information is fair grounds for discovery in court and may request it from the opposing party.
By going through the eDiscovery process, both sides have a chance to see the evidence the other party has before going to trial. It also provides an opportunity to request information to help build or defend a case. With this in mind, eDiscovery ensures a fast, fair, and speedy trial.
It’s also important to note that legal teams can form their internal eDiscovery policies and procedures—to an extent. In other words, you must act within the framework of the Federal Rules of Civil Procedure when engaging in legal eDiscovery. However, legal firms can form their eDiscovery policies for internal and client affairs. Most firms follow the Electronic Discovery Reference Model (EDRM) for guidance.
The Evolution of Social Media eDiscovery
In the early days of social media, it was a bit easier to conduct eDiscovery. Social platforms like MySpace, Facebook, and Twitter primarily involved exchanging digital information like posts and messages between users. There were also far fewer sites to keep track of.
Today, social sites are far more complicated because they act as interactive digital gathering spaces for people to meet, consume media, and communicate in real-time or near-real time. Social platforms also have varying levels of privacy and security policies.
What’s more, social platforms today produce far more data due to their complexity and diversity. For example, YouTube now functions as a video repository and a place where users can meet and chat. This means legal teams must consider chat data in addition to video files, likes, comments, and other media.
Where Are Things Likely Headed in the Future?
The social media landscape is constantly changing. Looking forward, we are on the cusp of another major transformation with the looming shift to Web 3.0—the next iteration of the internet that centers around decentralization and openness.
In Web 3.0, user communities, not large, centralized companies, own social networks. And this directly impacts data privacy, ownership, and information governance.
As such, legal teams must take the time to get up to speed with the emerging Web 3.0 framework and follow this emerging trend before it reaches mainstream adoption.
Common eDiscovery Challenges
Social media eDiscovery may sound simple. But in practice, it’s often very challenging. Social media users tend to have different social media habits and tendencies. Platforms, trends, and patterns often change quickly, which makes social media usage difficult to follow and analyze.
With that in mind, here are some common eDiscovery challenges that legal teams face when working with clients.
Tracking Social Platform Usage
One of the hardest parts about social media eDiscovery is gaining a full picture of a client’s social media usage. Users often forget or fail to disclose how many social platforms they use and the number of accounts they have.
In other words, a user may have multiple Facebook or Instagram accounts with two or three different identities. At the same time, a user may abandon an account or platform and forget about it entirely—potentially opening a can of worms during a legal proceeding.
Accessing Private Accounts
Public information—like profiles, pictures, and tweets—are typically fair game. But in some cases, you may need to request permission to access private accounts and communications.
It’s important to communicate clearly with clients about their social media accounts and prepare them for potential account requests from opposing parties. For example, an opposing lawyer may ask to view a client’s private Facebook messages or account details.
Deleting Social Posts
Clients sometimes attempt to destroy social media posts before a trial. In some cases, this behavior is accidental. Other times, clients may delete posts to try and protect themselves. Both cases can be equally damaging in court.
With this in mind, legal teams need to preserve social media information to ensure it remains defensible in court. The best way to do this is to place a legal hold on social media data. This requires determining what you need to put on legal hold and ensuring that the hold actually preserves the data.
Remember that once you place a legal hold, you’ll need to continue monitoring and communicating with the stakeholders to ensure they abide by the policy.
Discovering Deep Social Activity
As social media platforms become more complex, users are gaining more and more ways to engage with others and create data that may be important to a case. Consequently, social media eDiscovery investigations must expand in scope.
To illustrate, consider a legal case involving stalking or harassment on social media. It’s crucial to analyze the full scope of a defendant’s interactions on a site like YouTube or Facebook, such as likes, comments, chats, shares, and so on.
And these types of considerations must take place across all social platforms. Gathering all of this data can take a significant amount of time and effort.
Analyzing Social Posts
Collecting social media data is only half the battle. Legal teams also need to analyze information, taking into account a variety of factors like language, intent, timing, context, and other points.
Teams will need expert knowledge of the latest social media trends and a thorough understanding of an individual’s social and personal habits.
Discovering Messenger Data
Many employees today choose to leverage private, third-party applications for business communications. One of the most common examples is WhatsApp.
This practice often results in shadow data, which exists outside of the scope of legal or IT. Messenger data can be very difficult to discover and present in court because employees typically own their accounts and data.
It’s important to have clear policies limiting and controlling the use of third-party communications apps to avoid legal issues.
How Venio Helps With eDiscovery
Venio Systems offers a purpose-built platform for managing electronically stored information (ESI). With the help of Venio, you can centralize eDiscovery data of all types including social media as well as emails, text messages, blogs, photos, videos, and more.
In addition to centralizing data, our platform makes it easier to analyze information and reduce datasets using artificial intelligence. This reduces risk, lowers costs, and expedites the eDiscovery process. With Venio, legal reviews become much faster and more efficient, giving your team more time to analyze and review.
To experience how Venio can streamline social media data for your legal team, request a demo today.
About the Author
Justin Reynolds & Akshita Singhal
This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling. This post was reviewed and published by Akshita, Sr. Marketing Manager at Venio.