The Challenges of Discovery with Social Media-Find Out How to Subpoena Posts

Even in today's world where everything on the internet is said to be permanent, the volatile nature of the world wide web coupled with computer-savvy netizens still make it a challenge to use posts and information gathered from social media as evidence in litigation. The absence of clear guidelines and condensed, useful information can still render e-discovery useless. 

When one is presenting to a judge or jury, one is attempting to tell a believable story. Social media discovery materials, when used correctly, help make your story more credible. When creating a "big picture" for the judge or jury making a determination, tweets or online posts that indicate intent or any other part of the story that is central to your case can be very helpful. One of the main challenges today is this: All of this will be dependent on a lawyer's ability to obtain e-discovery (electronically stored information) materials and preserving (archiving) them in a safe location so that they can be used in court proceedings. This can often be done by subpoena. 

Another challenge is authentication of social media posts for the courtroom. Attorneys who are familiar with the Federal Rules of Evidence know that when social media posts are used as e-discovery material, the post itself is not enough. Beyond the screenshot of the post itself, information about it should be provided so that it can be considered for admission in court. Metadata of a social media post often include the means of creation of the post, time and date of creation, creator or author of the post and location on a computer network where the post was created. That is just for a text post. In a media-rich post, related links, videos, embedded files within the post should be recorded as well.

A lawyer or paralegal should be responsible for making sure that e-discovery materials containing social media posts are forensically accurate and that they pass a jury's scrutiny or, moreover, be given the appropriate weight relative to the case.

Sending a subpoena to social media sites can be a difficult process to maneuver.  Social media sites like Facebook and Twitter have legal pages that state their policy and the steps needed to request documents from them.  There is also a chance that a client will give you open access to their accounts.  In this case, posts must be validated for use in court.
Each social media site has it's own policies regarding discovery.   

Click on the social media site below to see their subpoena process and legal pages. They could prove helpful the next time social media comes into play during the discovery process. 

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