Social Media Discovery Requires a Plan (and Here’s One Below)

By Rhiannon Fionn-Bowman

In the time of COVID-19, Electronically Stored Information and efficient ways to retrieve it are important considerations in any discussion regarding litigation preparation, especially when it comes to discovery planning. However, keep in mind that social media content is easy to create, but can be difficult to use in litigation and you may have to explain the importance of this type of evidence to judges and juries.

A little planning will save you time and heartache when it comes to social media discovery. With one exception, before your law office seeks to obtain social media posts by a party or witnesses, you’ll want to create a customized plan of action. Your plan should consider the potential volume of the material, where it may be stored, any confidentiality or security concerns, and any other unique issues presented by the case. Moreover, it’s important your plan be both defensible and cost effective.

Your social media e-discovery plan should also incorporate appropriate jurisdictional ethical guidance, says Scott Malouf, a Social Media Attorney in New York who coauthored all four versions of the Social Media Ethics Guidelines for the N.Y. State Bar Association (NYSBA) and currently serves as co-chair of the Social Media and New Communication Technologies Committee for that organization, as well as on the American Bar Association/BNA Lawyers Manual on Professional Conduct Editorial Advisory Board. He is also a contributor to the ABA publication Handbook on Global Social Media Laws for Business Lawyers.

In North Carolina, the N.C. Bar Association has addressed social media in its 2018 Formal Ethics Opinion 5: Accessing Social Network Presence of Represented or Unrepresented Persons. In sum, attorneys can access public posts and they can send “friend requests,” et al. on the various social media platforms. They can use third parties to access non-public posts, but not if using deceptive tactics; however, they cannot seek access to nonpublic posts of represented parties without permission from opposing counsel, and, of course, deceptive tactics are never a good idea.

In the past, Malouf says, attorneys may have agreed to bypass certain discoverable items, for example client emails, but, he says, “That practice won’t work for social media, because if it’s publicly available your opponent or a third party may discover it.” Moreover, according to Malouf, if you don’t plan to conduct thorough social media and other online information searches during discovery, “you may be missing important information that might help your case. You can’t just seek to properly control the scope of your discovery obligations. You also have to ask, ‘am I leaving something helpful on the table?’”

He also instructs lawyers to think beyond the usual suspects—Facebook, Twitter, and Instagram: “If you’re trying to understand a person’s responsibility in the work place, their LinkedIn page might describe their title and experience,” he says, “or a Zoom meeting recording might help you understand how the business works.”

Malouf also advises to avoid trying to capture every post from every platform. Instead, he emphasizes the importance of planning. “Do an early case assessment,” he says. “Who are the users and where is relevant information likely to be located? Then drill down versus trying to collect everything. Your discovery demands should reflect that assessment rather than being a ‘standard’ demand.”

The one exception is Twitter, says Stephanie Boyette Nelson, owner of SBN Marketing, a boutique search engine optimization (SEO) and social media firm for small businesses in Charlotte. That platform creates unique challenges for e-discovery efforts because its search functionality leaves a lot to be desired—and you can forget conducting Boolean searches like you may be accustomed to in Westlaw or Lexis Advance.

The good news, she says, is that you can request an archive of a user’s Twitter posts if you have access to that account. So, if it’s your client for whom you are compiling tweets, this would be her preferred method. “It is easier to do text searches once you have that information in another format like a Microsoft Word file,” she says.

In a situation where you have account access—which would require your client to share their login credentials—you would also be able to access their Direct Messages, or DMs.

When you don’t have account access, Nelson offers these Twitter search tips. With Twitter, says Nelson, unless you can gain account access, it’s important to keep your searches simple. “If you’re looking for a specific topic associated with someone’s account, I would put in their username and one, maybe two, words. You have to be specific; if you’re looking for that word in a user account or a hashtag be sure use the symbols.”

For example, if you wanted to find out how many times I used the hashtag #LegalTech, you would enter “@RhiFionn #LegalTech” in the Twitter search bar. If you wanted to see all of my posts where I use the word paralegal, you would enter, “@RhiFionn paralegal.”

For Facebook, Nelson says that you can download a user’s account activity but, again, you must have ethically obtained account access to do that. With account access you will also, of course, be able to access a user’s private messages (PMs). Otherwise, your searches will be limited to what the user has shared publicly.

Generally, on Facebook, she says, “I find that if start my search fairly broad and then play around with the available filters I find what I’m looking for, and going that route might trigger something else that I need to search.”

As longtime friends on Facebook, Nelson and I decided to try some other types of searches during our interview out of curiosity. Many of past posts from my work as a journalist are hidden—they’re still there, only I’ve changed the privacy from public to “Only Me” or “Only Friends” perhaps because the news is stale or maybe it was a personal post I no longer feel comfortable sharing but don’t want to delete. Nelson discovered that because she and I are friends, she was still able to discover some of my so-called hidden posts when she searched for topics she knew I was likely to post about.

The key to social media e-discovery success, according to both Nelson and Malouf, is to familiarize yourself with social media platforms. “Use the tool before a matter comes up,” says Malouf, adding, “Ask your clients what they’re using and try to understand the tools and platforms that are important to them. Don’t try to learn everything, though, you will go nuts. Don’t try to become an expert. And know when to ask for help.”

Both Nelson and Malouf also agree that users may want some training on each social media platform, and that each of the apps or websites could use their own training session for in-depth e-discovery tips because they’re all just different and quirky enough to require different instructions.

For example, one unique feature on the LinkedIn platform you may already be aware of is this: when you visit a person’s profile they may be alerted that you have done so unless you have a paid account and adjust your privacy settings.

Nelson points out that, in addition to being able to view public LinkedIn profiles incognito, another advantage of a paid account is that you can directly email users, as well as message them via the platform’s messaging system. That feature may come in handy if you are seeking experts on a particular topic and want to get in touch quickly.

Again, Malouf says the key for attorneys is to try to become familiar with the various social media platforms and to make a discovery plan that is unique for each case. And if you are one of those “good litigators who don’t have time to understand all of the twists and turns of tech and ethics,” reach out to someone like him or Nelson for some help.

Rhiannon Fionn-Bowman is an award-winning journalist based in Charlotte currently writing “The Suffragist” column for QueenCityNerve.com. In May 2020, she graduates from Central Piedmont Community College’s Paralegal Technology program with honors. Connect with her via LinkedIn (https://www.linkedin.com/in/rhifionn/) or Twitter (@RhiFionn). She can be reached via email at rkfionn@protonmail.com.