The document discusses the importance of including social media in eDiscovery for litigation. It notes that social media posts can provide valuable insights into a person's actions, words, knowledge, personality, opinions, and circumstances. While discovery aims to identify such elements, social media is often overlooked in discovery requests and litigation holds. The document then provides recommendations for identifying prominent social media accounts, eliminating non-relevant posts, and processing useful social media data for inclusion in the discovery process.

1. SOCIAL MEDIA – A Key Component of
eDiscovery Litigation
By James Cortopassi
Posted February 16, 2016
In eDiscovery, Litigation, Social Media
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In eDiscovery practice, nearly every set of interrogatories, and document requests,
reference emails and their attachments, as well as electronically stored information (ESI)
and documents. But what about the volumes of social media posts, that often represent
the authors’ actions, words, subject matter knowledge, personality, hobbies, opinions, and
physical & mental circumstances?
Isn’t discovery the procedural means to identify those very elements, and see how they
may fit into the claims/defenses of a case, in the ultimate pursuit of justice? Are there
any more actual, current expressions of one’s present and past individualities? I submit
to you, there are not.
Regularly, discovery requests and interrogatories reflect the potentially responsive data
that goes to the heart of the claims/defenses, yet seldom inquire as to social media
relevance – let alone, a litigation hold that specifically addresses social media accounts
and their preservation.
Social media posts matter, and they need to be considered during all eDiscovery
litigation.

2. Today, a single post (text, photo, video, etc.) can say a thousand words – more telling,
perhaps, than a voluminous set of answered-interrogatories, or hours of deposition
examination, in many cases. These ever so fast moving, cloud-based personal yet
public outlets, attract the use of over 74% of online adults – everyday.*
So why is counsel so hesitant to request social media during discovery? Perhaps, they are
not sure as to the process and/or costs involved in capturing social media? Fortunately,
there are efficient, cost effective ways to identify, preserve, capture, export and produce
social media account information, and use the findings in the pursuit of justice.
Identify Prominent Accounts
First, identify any/all social media account(s) that may have been used to communicate
information pertaining to the litigation. And while there is an inherent requirement for
the preservation of data that may be responsive to a case at bar, it doesn’t hurt to remind
your adversary within the appropriate pleadings or during proceedings. We must fight
the urge to request all account posts, as the reasonable request must continue to abide by
rules of procedure and pass proportionality-muster of the court.

3. This is accomplished by one of two ways:
1. Ask the party about their social media presence within interrogatories and/or other
discovery practices.
2. Have pre-existing knowledge as to what key accounts are being used, by way of
initial investigation of public profile availability.
Eliminate the Clutter
Next, you will want to limit the social media posts, photos, videos, etc., by searching for
keywords or phrases, date parameters and other metadata, that touch/concern the case at
bar. This means of culling should be just as easy as your attempt to have an isolated and
culled set of ESI, emails and attachments, produced during discovery. You will not be
provided with many, if any, account credentials, so your social media discovery will be
based on public-facing profiles, and posts that are not password protected.
Process Your Data
Finally, decide the format in which you will want the social media eDiscovery
produced. Today, social media collections can easily be exported as load files, and
imported into a database management solution. In the alternative, and when convenient
to the discovery process, social media captures can be searched and organized within the
capturing platform, and produced as images/PDFs, and simply forwarded by link, media
or other file transfers.

4. Attorneys need to consider all avenues of eDiscovery and, today, there may be no more
relevant source of discovery as social media accounts’ posts, photos and videos. When
you combine the efficient means, very much in-line with other collection and
preservation methods for ESI, with that of the reasonable cost of capturing social media
(when weighed against the exposure of the case); it is a proportionality decision to be
made by attorney firms and their clients. For social media collections, eDiscovery, or
any other litigation support service, contact us on our website or by phone for a free
consultation.
*Citation: Pew Research Center
James Cortopassi
James Cortopassi brings nearly 20 years of eDiscovery experience to his practice as a
leader in litigation support and eDiscovery coordination. Mr. Cortopassi has managed
thousands of cases involving forensic collections, data processing & hosted solutions,
managed document review, ESI productions, trial technology services, and workflow-
innovation. Mr. Cortopassi is a member of the Association of Certified E-Discovery
Specialists (ACEDS).