The Sedona Conference Working Group on Electronic Document Retention and Production has released a Primer on Social Media, 2nd Edition, and it is now available and open for public comment through September 10, 2018. Additionally, there will be a 90-minute webinar on the public comment version for Wednesday, August 8th at 1:00 P.M. EDT. There is a $99 fee for the public. The webinar will be hosted by none other that Ken Withers of the Sedona Conference.
For those who aren’t familiar with the Sedona Conference, it is a 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights. Their stated mission is to “move the law forward in a reasoned and just way” and to that end, they have been very active in the eDiscovery community over the years, most notably for the Sedona Conference Cooperation Proclamation. https://thesedonaconference.org/cooperation-proclamation
I’m glad to see this updated version to their 2012 Primer since “the times, they are a changin’.” This version prominently reflects the new issues that social media has brought to the litigation table, particularly in two areas: digital messaging and the 2015 amendments to the FRCP rules with the subsequent affect those changes had on using social media as evidence.
The primer from 2012 refers to the “hundreds of millions” of people on social media. It’s now billions! That version started off with primarily organizational issues whereas the new Primer wastes no time diving into the heart of new technology issues in discovery and the challenges that the various platforms, particularly messaging applications, bring to the table.
The second major focus is the issue that the changes to the FRCP brought into effect in December of 2015. The Primer specifically addresses the issues surrounding social media disputes and discusses in detail an area that I often address in CLEs, the authentication of social evidence.
Specifically, it discusses assessing whether to preserve, how to request with specificity, how to search for, and how to produce social media evidence, e.g.:
- which social media sources are likely to contain relevant information;
- who has possession, custody, or control of the social media data;
- the date range of discoverable social media content;
- what information is likely to be relevant;
- the value of that information relative to the needs of the case;
- the dynamic nature of the social media and user-generated content;
- reasonable preservation and production formats; and
- confidentiality and privacy concerns related to parties and non-parties.
Many model rules are cited throughout the Primer as well as relevant caselaw. Everything you want to know about proportionality, privacy, requesting social media evidence, who has possession, custody and control and just what is “control.” It also delves into areas such as:
- the details of preserving and collecting social media
- the role cooperation plays
- reasonable steps in dealing with social media
- capturing static images and
- self-collection as opposed to using an application interface.
I also learned from this Primer (at page 325) that it is possible to get an exact native file of collected content of a social media site. And of course, prominent considering the recent Carpenter decision, the Primer discusses the Stored Communications act and the various restrictions. Even though a third party may store your data, it doesn’t mean that a person litigating against you cannot gain access to that data.
Finally, sections on Cross Border Discovery Issues and Ethical Considerations ensure that this Primer is completely up to date with the most recent topics in eDiscovery. And to further guarantee that it stays current, the primer is open for public comment through September 10, 2018 by email to [email protected] and suggestions for improvement are very welcome. After the deadline for public comment has passed, the drafting team will review the public comments and determine what edits are appropriate for the final version.