Requesting the opposing party’s social media content in the course of discovery has become commonplace. However, the practice of effectively obtaining, reviewing, and presenting social media evidence often falls short.
By David R. Hazouri, Family Lawyer and eDiscovery Consultant
As family law lawyers, we analyze and present the information that tells our clients’ stories to a judge sitting in equity. With the advent and global adoption of 24/7 Internet connectivity and handheld mobile computing, that story is rapidly migrating to the cybersphere. The attraction of immediate, yet highly composed, communication is addictive. Even the commercial sector has seen the favored method of contact move from email to text message – and now towards customizable chatroom-like cyber platforms such as Slack.com. For family lawyers, understanding and effectively presenting our clients’ stories requires familiarity with the various computer devices and applications through which these stories are being told. There is certainly the technical side to having such familiarity. But there is also the substantive side, as well. For instance, from a technical perspective, it is very helpful to know that a smiling emoji generated on an iPhone using one platform may appear on the receiver’s end as a grimacing emoji based on the fact that the receiving party is using an Android-based device1.
From a substantive (or pictographic) standpoint, it may also be helpful to know that different people interpret the “praying hands” emoji to mean “high five,” that the “syringe” emoji can mean “blood brothers,” or that the “eggplant” emoji means, well… ask your kids to explain it. In any event, it behooves the competent family law lawyer to engage this technology from both a technological and substantive perspective in order to serve his or her client’s best interests. The remainder of this article will touch on a wide variety of points to help illustrate in a very practical sense how the busy lawyer can go about beginning to acquire and integrate this knowledge into everyday practice – especially as it relates to obtaining and presenting social media evidence.
How to Request Social Media Content
Requesting the opposing party’s social media content in the course of discovery has become commonplace. However, the practice of effectively obtaining, reviewing, and presenting this potential social media evidence still often falls short. In requesting production of social media content, it is wise to include a comprehensive list of the most prevalent and au courant social media sites as a non-exclusive list of what is being sought. My standard request for production currently recites well over a hundred social media platforms and applications in the definition section for “social media account.” By being so specific, you are prompting the receiving attorney to be more thorough in investigating the client’s account usage than if the phrase “social media” came with no illustration at all.
You are also avoiding discrepancies (real or manufactured) over whether something is a social media site, a messaging application, a blog, etc. By using the term “account” as opposed to “postings” or “content,” you are also more likely to capture all information that the user may be generating and receiving on the account. This point is an important one because, as social media has matured, the various sites have added more and more functionality in order to keep the user on their site and make their application more conducive to integration with a wider range of other sites. Some of the best examples are the addition of instant messaging functions by sites such as Facebook and Skype or the more lasting chronicling function of “stories” on Instagram.
Understanding Social Media Content
Of course, obtaining a pre-compiled list of social media accounts for your production request may be of limited use if you are completely unfamiliar with what 80% of the sites offer (not to mention whether they even still exist).2 Here, in large part, is where the rubber meets the road. I strongly encourage you to visit the websites of the more important social media applications – particularly the “Frequently Asked Questions,” “Privacy,” and/or “Legal” pages. These pages offer a wealth of the very latest information about these sites, which is important for several reasons. First and foremost, you will find a description of all the things the application can and cannot do, including the user’s range of options in customizing his or her account’s functionality, accessibility to others, and rules for local and cloud-based data storage and retrieval.
Understanding these features and options will inform your decisions in shaping and pursuing your requests to opposing parties for this information, including being able to knowledgeably negotiate with opposing counsel regarding the extent and format of production and, where necessary, to explain to the court the reasonableness of your request when opposing counsel objects.3
Here is a hypothetical example. You are seeking the opposing party’s Facebook content for a given period in native format. In this instance, you are aware that the opposing party made, and then deleted, relevant comments/posts on a suspected paramour’s Facebook wall that you have been otherwise unable to get under subpoena.4 Opposing counsel has offered to produce the archive file for his client’s account created by the resident archiving function that Facebook offers its account users. Assuming agreement on issues of authenticity and opposing attorney’s oversight of his client’s collection, practically speaking, this is generally a reasonable response.
However, because you have read the Facebook FAQ page and/or completed just a modicum of Google research on the Facebook archive function, you know that the archive file will not contain any record of the subject comment/post or its deletion. Although the Facebook archive functions capture a significant amount of data and events, it does not capture these. Assuming from a relevance/proportionality standpoint that the information is discoverable, you now know why you need a forensic capture of the Facebook account, how to explain this is good faith negotiation with opposing counsel, and, if need be, argue to the judge on a motion to compel.
Best Practices for Obtaining Social Media Evidence: Engage an eDiscovery Vendor
The foregoing is not to say that party self-collection and/or preservation is normally sufficient to constitute best – or even good – litigation practices. In most situations, it is insufficient, and you should generally only utilize it as an initial stop-gap preservation method if the social media application at issue has a resident archiving function and the archiving protocol can be easily followed with attorney guidance.5
If there is to be any significant discovery of social media content, you are well-advised to engage an eDiscovery vendor who is capable of unilaterally searching for and capturing any such publicly available data with respect to an opposing party, and capturing, filtering, and hosting such discoverable information from your own client that you may need to review and eventually produce.
The advantages are threefold:
- A good vendor will have access to multiple capture tools that will capture a wider range of application and site types.6
- These vendors will typically assign a hash-value to each element captured or otherwise follow a forensically sound methodology that will establish authenticity in support of admission at trial.
- These vendors can host this data in native format as needed so that a significant amount of such data can be searched the same as less exotic file types (e.g., .doc, .msg, .pdf) can in a hosted searchable database platform.
Thanks to increased competition over the last five years, these services are becoming much more reasonable in terms of pricing/burn rate.
Given the easy access the Internet provides to information about the functionality and attributes of not only social media applications but also cell phone platforms (e.g., Apple’s iOS), accounting programs (e.g., Intuit’s Quickbooks), and even the Internet itself (e.g., Internet Archive’s Wayback Machine), it is well within the reach of all family law practitioners to gain the technical knowledge and cyber competence a modern family law practice requires.
1 In “Emojis and the Law,” (93 Washington Law Review 1227, 2018), Professor Eric Goldman refers to this phenomenon as “cross-platform depiction diversity.” You can download a .pdf of the article here:
2 A quick Google search will pull up plenty of helpful sites in addition to Wikipedia that can provide a list of current and popular social media applications, such as: “65+ Social Networking Sites You Need to Know About” (last updated June 5, 2019).
3 Generally speaking, this information is written in relatively non-technical, consumer-oriented terms, so there is absolutely no excuse for not consulting these sources. Additionally, because of federal and growing state-based personal privacy regulation, as well as more recent pressure from consumer expectations, social media websites are providing account users with more options with respect to the storage and recovery of their own account data.
4 Forget trying to subpoena Facebook directly for this third-party’s page content or history.
5 Perhaps the very first step to take is a preservation letter served on the opposing party and explicit instructions to your own client not to delete any information and to disable any routine, automated deletion features.
6 For instance, while X1 Social Discovery is an excellent and very user-friendly tool that costs only around $2,000 to license annually, it currently can only capture Facebook, Instagram, Tumblr, Twitter, IMAP, Gmail, YahooMail, AOL Mail, YouTube, and webpages/sites. See www.x1.com/products/x1-social-discovery.
David R. Hazouri, a partner at Rafool, LLC, has a deep proficiency in investigative discovery involving computer-based information. In 2006, David established his own eDiscovery consulting firm, and he has taught bar-certified courses on eDiscovery to law students, attorneys, and judges and is currently a Certified X1 Social Media Examiner. www.rafool.com
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