The recent article published by Kashmir Hill from Forbes.com, “Judge Orders Divorcing Couple To Swap Facebook And Dating Site Passwords,” discusses and links to a number of instances of opposing counsel seeking to, and in some cases, getting full account access to a social media property to find relevant data.
This doesn’t make sense. Outside of the significant privacy implications, it’s also an unsustainable and technically flawed work flow.
At Nextpoint, a sustainable, repeatable approach to social media discovery is being developed and refined every day. Using Facebook as the case study, here’s a snapshot of how our clients use it today. ( This workflow is applicable to every social network platform and our Cloud Preservation technology collects from a number of them including: Facebook, Twitter, YouTube, Flickr, LinkedIn and Tumblr. )
1. Notify & Disclose: Notify all relevant parties that content on Facebook profiles or fan pages should be preserved for purposes of social media discovery. Request a legal hold. I am not a lawyer, but as I understand it this falls under Rule 26.
2. Identify: Identify those Facebook feeds, whether personal profiles or official corporate feeds, that will need to be preserved for purposes of the legal hold and relevance review.
3. Preserve: Using Cloud Preservation’s Facebook API integration, all of the content made available to Facebook property is indexed and archived separate from Facebook in a highly secure, private archive.
This preservation is a snapshot of all of the content posted by and available to a Facebook profile, as of the initial date of the preservation. This will contain all of the information that may need to be produced, but will also include a lot of irrelevant data. Potentially, in the case of a company with hundreds, thousands, or tens of thousands of interactions with Facebook users, this is an ocean of data — again most of it not relevant, but you don’t know until you know.
4. Collect: Now that all of the data available to a Facebook property is securely archived, indexed and compiled into a forensically sound archive, there is now a defensible legal hold in place. No worries about spoliation by any user, whether intentional or not.
The next step is to develop a subset of potentially relevant data from this preservation. This is done by using powerful search syntaxes to build Boolean, proximity and fuzzy keyword searches, again built into Cloud Preservation.
5. Initial review: Now that obviously irrelevant data has been removed, the subset of Facebook content to be produced is reviewed using Discovery Cloud. Discovery Cloud receives the data directly from Cloud Preservation (no need to download and then upload). The transfer is seamless. Any relevant content is tagged for production. Any privileged content tagged for privilege. (Is it possible to have content that is attorney-client privileged on Facebook? Of course, if it’s a private message.)
6. Final review: The Facebook content to be produced is then sent securely within Discovery Cloud to the opposing counsel to access. Opposing counsel only has access to the Facebook data and metadata – attorney notes, issue codes and irrelevant data is not available. It’s digital discovery, just a new type of data.
7. Grant access: Producing counsel makes a final check of the content to be produced and gives counsel access to Discovery Cloud. If local rules require, production may be made in a PDF format. However, it is far more costly, time consuming and introduces a much greater possibility of error resulting in the counsel building in extra time to manually review the PDF production. Opposing counsel can then search and save the content as needed.
8. Ongoing archiving: The Facebook archive continues to build with additional content generated or received since the original legal hold was placed. Additional materials, if relevant, are then sent to Discovery Cloud.
9. Supplemental exchanges: Back to step 7, new relevant Facebook content is made available to opposing counsel.
Nextpoint builds technology to help lawyers manage digital information. Social media represents the latest type of digital information to be managed. With the right technology, processes and support in place, our clients have a fully integrated solution for social media today.