1. Social Media and
Discovery
Kirby Drake
Klemchuk LLP
Copyright 2019 KBD

2. What Is E-Discovery?
 Electronic aspect of identifying, collecting and producing
electronically stored information (ESI) in lawsuit
 Existing in a medium that can only be read by using
computers, such as cache memory, hard drives, DVDs/CDs
 Can include emails, text messages, documents,
presentations, databases, voicemail, audio and video
files, social media postings, and websites
 Found on a wide variety of devices such as desktop and
laptop computers, network servers, tablets, and phones
Copyright 2019 KBD

3. Social Media E-Discovery Sources
 Facebook, Instagram, Pinterest, LinkedIn, Twitter;
messaging applications including general purpose
(e.g., WhatsApp) and auto-deleting (e.g. Wickr) varieties
 Each social media account for each individual user can
contain hundreds or thousands of pages of materials in a
mishmash of formats
 Also have metadata fields for each file
 IP address logs (user activity) may be available too
Copyright 2019 KBD

4. How to Obtain Social Media E-Discovery
 Print out material or capture a screen image of it
 Use self-service export tools provided by social media
platform instead
 Use specialized forensic collection software
Copyright 2019 KBD

5. How to Obtain Social Media E-Discovery
 Print out material or capture a screen image of it
 PROS - fast, simple, and cheap
 CONS - will not have captured native file or any
associated metadata; unless other party concedes
authenticity and accuracy of print or image copy, may
have a hard time getting such a copy authenticated and
admitted as evidence
Copyright 2019 KBD

6. How to Obtain Social Media E-Discovery
 Use self-service export tools provided by the social media
platform instead
 Facebook’s dates back to 2010 (“Download Your
Information”); Twitter’s dates back to 2012 (“Twitter
Archive)”
 Fast, simple, and cheap, but can only be done by
account holder (or by someone with their credentials
and consent)
 Length and format can make the export challenging to
sort through and separate once obtained
 Export may not provide all available metadata and
timestamps or linked content embedded in the
materials from other sites (e.g., YouTube videos)
Copyright 2019 KBD

7. How to Obtain Social Media E-Discovery
 Use of specialized forensic collection software
 Can capture files and materials, along with metadata
and any linked content, and provide options for
searching, sorting, and filtering
 Most commonly used tool of this type is X1 Social
Discovery
 Carries additional costs (either for tool or for services
from provider with tool), but can be essential for cases
involving large quantities of social media materials,
questions best resolved through metadata, or potential
for disputes over authenticity and admissibility of
social media materials themselves
Copyright 2019 KBD

8. Discoverability of Social Media
 Generally discoverable under the same conditions and in
the same ways as any other type of evidence (FRCP 26(b))
 Standard applies to tweets, Facebook posts, or Instagram
pictures the same way it does to more traditional sources
like Office documents or emails
 If it’s relevant, it’s discoverable
 FRE 401 – relevant if materials requested have any
tendency to make any fact of consequence to any claim or
defense of any party any more or less probable
Copyright 2019 KBD

9. Discoverability – Social Media
(continued)
 Traditional requests for production
 In camera review – depends on court
 Password requests – generally disfavored; not commonly
used
 Subpoenas to service providers –Stored Communications
Act (“SCA”) establishes certain privacy protections for our
electronic materials stored with third party service
provers, from both government intrusion and third party
access
Copyright 2019 KBD

10. Crispin v. Christian Audigier, Inc. (C.D.
Cal. 2010)
 Ruling on private messages
 Ruling on Facebook wall and MySpace comments
 Distinction between private messages and Facebook
wall/MySpace comments
Copyright 2019 KBD

11. Hawkins v. College of Charleston,
(D.S.C., Nov. 15, 2013)
 Facebook account deleted
 Question of whether litigation foreseeable at time of
deletion
 Sanctions
Copyright 2019 KBD

12. EEOC v. Simply Storage Mgmt., LLC, 270
F.R.D. 430 (S.D. Ind. May 2010)
 Decision about proper scope of relevance
 Privacy concerns raised
Copyright 2019 KBD

13. The Katiroll Co., Inc. v. Kati Roll &
Platters Inc. (D.N.J. 2011)
 Defendant changed Facebook profile picture from one
that included dress that trademark dispute was over to
one that did not
 Plaintiff sought spoliation sanctions over that change
 Addresses spoliation, intent, and remedial measures
Copyright 2019 KBD

14. Gatto v. United Airlines (D.N.J. Mar. 25,
2013)
 Plaintiff produced Facebook password to defendants to
access, review, and print some agreed-upon materials
 When they attempted to access the account, however,
plaintiff received automatic notification from Facebook
about an access attempt from new, unauthorized IP
address and – allegedly fearing hacking – deactivated his
account
 Later attempted to restore it, but after two weeks of
deactivation, Facebook had already deleted the account
materials (per its standard policy) making them
unrecoverable
Copyright 2019 KBD

15. Crowe v. Marquette Transportation Co.,
No. 14-1130 (E.D. La. Jan. 20, 2015)
 Plaintiff deactivated his Facebook account days after
receiving a discovery request to produce materials from
it, and then, he claimed he did not “presently have a
Facebook account”
 Discussion of whether spoliation sanctions should be
entered
Copyright 2019 KBD

16. Social Media Ethical Concerns
 When and with whom is it okay for an attorney to
communicate via social media?
 Can an attorney research parties or jurors’ public social
media materials?
 Can an attorney submit a friend request in an attempt to
view non-public materials?
 What information about him- or herself must an attorney
disclose?
 Does an automated notification that an attorney viewed a
social media profile count as a communication from that
attorney to that individual?Copyright 2019 KBD

17. Social Media Takeaways
 Self-help collection options are limited, but okay in some
situations. Custom tools available for when more
complete collection or more robust post-collection options
needed.
 Social media evidence discoverable when
relevant. Overbroad requests disfavored and likely to be
limited by judge, and discovery of passwords for unlimited
access strongly disfavored and likely to be
disallowed. Subpoenas to obtain materials directly from
social media service providers are unlikely to work.
 If relevant, needs to be preserved, and clients need to be
advised of that fact explicitly. If it’s lost, even
unintentionally, sanctions may follow.
Copyright 2019 KBD

18. Kirby B. Drake
Klemchuk LLP
kirby.drake@klemchuk.com
214-367-6000
Copyright 2019 KBD