Discovery of social media can be one of those areas that is exciting in theory, but distressing in real life. The panel on social media at Georgetown Advanced eDiscovery Institute last month covered a wide range of issues including privacy (or lack thereof), admissibility, spoliation and the applicability of the Federal Rules to new technology. As panelist Adam Cohen remarked, “Social media is all your eDiscovery nightmares rolled into one.” Social media is voluminous, cloud-based, structured in a non-linear fashion, rapidly evolving and diverse. But the rules that were designed for paper and have been applied to email still govern tweets and reddits.

Neither relevance nor admissibility requirements disappear when the requestor says, “because Social Media!” Courts and lawyers are still struggling with basic, easily avoided issues like admissibility. For example, an unauthenticated screen shot of a social media post went to the Second Circuit recently. Offering a screen capture without step by step authentication is roughly the equivalent of photographing an email on someone’s computer screen and offering the photo: you might resort to it if you could document when and how you did it, and that it was the person’s computer and so forth, but wouldn’t it be easier to get the document by an agreed procedure and make a bates-stamped photocopy? Likewise, relevance still means the same thing as it does any other time, so a request for “all social media” without an argument why “all” of it is relevant as opposed to a targeted swath of it is no different than any other fishing expedition. Panel moderator Martin Tully pointed out that the Civil Rules don’t allow one to get open ended discovery solely to rummage about in a party’s underwear drawer.

Discussion of social media usually includes a discussion of “the death of privacy”. Social media has changed the perception of what is and is not private because of how people use it. Case law has had to find the right analogies to existing communication forms, but again the rules developed for paper and oral communication still fit. Social media offers many different privacy settings and is not inherently different from email for purposes of relevance. A social media post made available for viewing by 300 friends is less private than a direct message, but a direct message is no less discoverable than an email. A twitter message may be very public, like shouting in a crowded room, but may be completely irrelevant if one never shouts about content relevant to the litigation.

The good news is eDiscovery providers that specialize in social media are working to develop collection technologies that aggregate social media content and allow it to be tagged and reviewed in a fashion that roughly corresponds to its presentation in the user interface. For a practitioner part of the challenge is effectively analogizing social media evidence to other kinds of evidence. But once a litigator finds the right argument, Rules of Evidence and Civil Procedure still apply and are actually quite effective.