As digital communication evolves, social media platforms and short message data have become integral to modern litigation. Posts, comments, direct messages, and ephemeral content can serve as pivotal evidence, presenting unique legal and technical challenges in their collection, preservation, and review.
Why Social Media Discovery Matters
Evidence from platforms like Facebook, Instagram, LinkedIn, and X (formerly Twitter) is increasingly utilized in cases ranging from employment disputes and personal injury claims to intellectual property conflicts and criminal investigations. Such information can reveal insights into an individual's state of mind, location, relationships, and intent, potentially influencing case outcomes. Similarly, professional communication tools like Slack and Microsoft Teams have become critical in corporate environments, with their data being subject to discovery.
Unlike traditional electronically stored information (ESI), social media and short message data are dynamic and ephemeral. Content can be deleted, modified, or lost due to platform limitations, making defensible collection and preservation essential for legal teams.
Key Considerations in Social Media and Short Message Data Discovery
Understanding what content is discoverable — and defensibly collectible — is one of the most pressing concerns for legal teams navigating social media and short message data. Courts continue to refine the boundaries of relevance and proportionality, especially as these platforms blur the line between personal and professional use. While a public Facebook post may be clearly within the scope of discovery, what about a private Slack message sent during work hours, or a disappearing Instagram story shared with a limited audience? Legal teams must be prepared to argue for or against the inclusion of this type of evidence, balancing privacy considerations with the obligations of Rule 26 and other discovery standards.
Once discoverability is established, defensible collection and preservation become paramount. Too often, legal teams default to basic screenshots when dealing with social media. This approach not only fails to capture metadata but also opens the door to questions of authenticity. More sophisticated tools like Cellebrite or PageFreezer offer defensible forensically sound methods of capturing dynamic data, including timestamps, location data, message threads, and deleted content (where retrievable). Importantly, these tools can also capture context: the surrounding messages, shared media, and metadata that provide evidentiary weight.
In matters involving corporate messaging tools like Teams or Slack, proper coordination with IT departments is critical to ensure data is preserved before retention policies eliminate it, and note challenges in ephemeral data across the board.
Reviewing this kind of data presents its own set of challenges. Unlike traditional emails or documents, short message formats often consist of rapid-fire, informal communication that’s fragmented across multiple platforms. Fortunately, eDiscovery platforms have evolved to meet this challenge. Tools like Relativity’s Short Message Format (RSMF) convert chaotic threads of texts, chats, and posts into structured, visually familiar formats that mirror how the messages originally appeared. This not only enhances reviewer efficiency, but also provides the necessary context for defensibility, which is crucial when trying to understand tone, timing, or the flow of a conversation. With the right tools in place, legal teams can turn what was once a logistical nightmare into a streamlined, repeatable process.
Real-World Implications
Mishandling social media evidence can lead to severe consequences. In Lester v. Allied Concrete, the plaintiff deleted Facebook photos at his attorney's direction, resulting in significant sanctions — $542,000 against the lawyer and an additional $180,000 penalty for the client. This case underscores the critical importance of proper handling and preservation of social media data.
Be sure to utilize proactive measures like drafting clear policies for corporate social media use, issuing comprehensive legal hold notices, and establishing data retention schedules to mitigate risks associated with social media and short message data in litigation.
Stay Ahead of the Curve
Social media and short message platforms are continually evolving, presenting ongoing challenges in eDiscovery. Legal professionals must remain vigilant, adapting strategies to effectively manage and utilize this dynamic form of ESI. Partnering with experienced eDiscovery providers can ensure compliance with evolving standards and the defensible handling of social media and short message data.
By understanding the complexities and implementing best practices, legal teams can navigate the challenges of social media and short message data discovery, turning potential obstacles into opportunities for building stronger cases.
