How to Collect (and Preserve) Social Media Content for E-Discovery

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Social Media Content for E-Discovery - conversations digital law firm marketing

With insight from Brett Burney, an E-Discovery Consultant and expert in bridging the knowledge gap between the legal and technological fields.

Social media is everywhere these days. Potential employers ask for your LinkedIn page, old high school classmates connect through Facebook, and political headlines keep us up-to-date on Twitter. Each year, more and more attorneys need to use social media evidence in their cases.

But with the increase of web content and social media in our daily lives, it’s only natural that there will also be increased regulation in a court of law. As this type of web content develops over time, lawyers need to be familiar with the most recent laws, rulings, and ethical issues regarding appropriate collection and preservation of web content.

We spoke with Brett Burney, the Principal of Burney Consultants LLC, who helps attorneys with electronic discovery in their cases, to discuss best practices for social media collection and preservation.

 

Collection and Preservation of Web Content, Generally

When a case requires social media content to be collected as evidence, an attorney must know how best to instruct their clients on proper preservation tactics. For example, an employee could be injured on the job and file a claim for worker’s compensation, but then post pictures on their public Facebook profile of the employee playing soccer with friends or running a marathon. Will the employer’s lawyer know how to collect and preserve that data for the case?

Brett: You are absolutely correct that there is a knowledge gap in the preservation/collection side. We’ve come a long way in attorneys knowing how to “preserve” email, but social media and web content is so dynamic and fluid when compared to more “static” types of information that we’re more comfortable with knowing how to collect and preserve. Here it’s more of a question if the collection can be authenticated – both from the content of WHO did the collection, and whether the collection actually LOOKS like the original.

In that case, attorneys should consider the best methods of collecting the social media posts for their clients.

 

Social Media Collection: Best and Worst Practices

 

  • Third-Party Software

 

Some software services can now collect the social media posts through enterprise servers, which allows attorneys and their clients to use a third-party to keep them out of the “chain of custody” of a piece of web content. 

    • Page Vault (www.pagevault.com) Brett recommends Page Vault because of their high-quality capture technology and because they can supply you with an affidavit of their process and all necessary details as to how the content was collected.
    • X1 Social Discovery (www.x1.com/products/x1-social-discovery)
      For monitoring, collection, and preservation of social media content on a larger scale or for continuing content, Brett recommends X1 software. X1 additionally collects all the metadata from each post (time stamps, GPS locale, etc.), which makes the content much easier to verify. 
  • Print or “Print to PDF” 

This method is not always the most helpful, because, as Brett says, “most web content is dynamic, so the printed version may not look anything like what’s on the screen.” Additionally, print settings vary from computer to computer, and accidentally adding your name and/or date to the document makes the attorney or client part of the “chain of custody” for that piece of evidence. 

Brett: Unfortunately, this is the method that most people default to, probably because it’s what they’re most comfortable with. They see something on a webpage, and if they want to “preserve” it they immediately think of the print button. 

Instead, attorneys should try to encourage their clients to use some of the above software, which are more likely to be admissible in court. 

  •  “Screenshots” or Screen Snapshots

Screenshots provide an image or PDF of the content that looks exactly like the content on the screen. However, Brett says, “all you have is a static (non-searchable) picture” and the screenshot does not always capture the full content of a lengthy web page. Additionally, as with the PDF prints, screenshots do not allow you to verify where, when, or by whom the capture was created. And perhaps the biggest issue with screenshots is that Photoshop manipulation is so prevalent these days, as well. 

Brett: That’s why it’s so incredibly important for the lawyer or paralegal who is performing this collection/preservation to document everything that they’re doing, so they can answer those questions (in court). I even recommend that they note where they save the JPG or PDF AFTER making each screenshot.

Learn More

Want to learn more about the most recent findings and laws, as well as the ethical issues of web content preservation? Check out Page Vault’s “Collecting Web Content” webinar, in which Brett and other e-discovery experts go into further detail and give more recommendations for best practices.