Retrieving Discoverable E-Discovery Data from Social Media Sites: Or, "Wow, is this what I asked for?!"

A great deal of attention has been properly paid to the inherent data privacy and compliance issues surrounding critical e-discovery data stored on social media sites such as Facebook, LinkedIn and Twitter.  Moreover, when this same data is stored in the Cloud, these issues become further complicated.

A more pragmatic question which has failed to receive much attention is the lack of a universal file format, or data export format, in which this social media content e-discovery data should be provided to those who do manage to obtain it via a successful RFP or subpoena.  The Sedona Conference has grappled with this issue, as has ILTA (in part related to a larger debate concerning a universal form of production standard, where Julie Brown has worked diligently and masterfully to prepare Draft EDRM Production Standards) but there seems to be a lack of consensus even among leading e-discovery technologists about what export format would in fact be preferable.

Being a purist, I automatically vote for the actual text files reflecting the text verbatim as it appeared on the social media site.  See, look how easy that was!  Hmnn, thinking ahead, this might be trickier than I thought.  Will I get a single, enormous blob of a text file, with no document or page breaks, no date and time pagination, which will then require a lot of clean-up prior to making useable (and, if yes to the clean-up, what about spoliation risks in doing so?) or will I get a giant log file listing an audit trail of all of the actions taken on the site, devoid of any content at all?  And even if I were to get logically organized content files as opposed to the single enormous blob file, while these will be great for full-text searching purposes, when it comes time to produce the responsive documents, as text files, they will inherently have no formatting – no fonts, no headers and footers, nothing but the raw text. 

Indeed, while the use of social media compliance technologies continues to grow rapidly, as it should, we are still faced with the general conundrum of managing critical business or legal data being stored in the Cloud:  it’s cheap and easy to get it there, but now that it’s there, how do we get it out? 

So what file formats are we seeing exported in reality today?  Believe it or not, and striking straight in the heart of our otherwise sophisticated and advanced e-discovery technology spectrum,  I see page-by-page screen shots frantically attempting to capture all potentially relevant content copied and pasted into Word documents, and then, dare I say it, printed for review and production, page by page.  As Jaclyn Jaeger explained in her recent Compliance Week article, this process is riddled with at least two major problems, first, the data is dynamic and therefore constantly changing, so how does one accurately and comprehensively capture it all?  Second, this process, depending on the volume of data, could be extremely time consuming (and therefore potentially expensive) and after all is said and done, still not be in a meaningful format that reflects the original e-discovery content posted on the site.

One possible solution, in my opinion, would be a new technology comprised of an export utility designed to convert and export the content into a flat-file or relational litigation database format, such as Summation or Ringtail, or, in the alternative, even a third party electronic review tool database format.  Either of these environments will at least afford the luxuries of reviewing structured, organized, searchable, prioritized e-discovery data as opposed to loose unstructured electronic data or page-by-page printouts.  I hope my buddies in the industry are listening to this one, because to date, I have not heard even any rumblings of this seemingly much needed technology. 

In the interim, if you find yourself as the requesting party of this content, it would be prudent to request it in an electronic format that you believe will be compatible and useable within your business, organization or law firm’s technology platform.  As the saying goes, it doesn’t hurt to ask, and you just might get what you asked for!