The Basics of E-Discovery: Processing, Privacy, and Social Media

Electronic discovery—e-discovery for short—refers to the discovery of electronically stored information (ESI) in civil or criminal litigation. E-discovery specifically relates to digital evidence. Everything from emails and social media posts to hard drives and digital images fall under the category of digital evidence and can be used in litigation.

Essentials of E-Discovery from Texas Bar Books provides legal professionals with in-depth guidance and information relating to electronic discovery. In this blog post, we’ll highlight some of the most pertinent topics from Essentials, including processing and privacy issues.

Processing in E-Discovery

Let’s begin with what some consider the middle stage of e-discovery, processing. As technical as this stage is, lawyers must be aware of the fundamentals of electronically stored information (ESI) processing to avoid costly mistakes.

Processing is where things can go terribly awry in terms of cost and outcome. By understanding the fundamentals, you'll be better suited to overcoming mistakes and resolving them when they do happen.

Why Processing is Such an Essential Step in Electronic Discovery

According to Craig Ball, author of Chapter 11 of Essentials of E-Discovery, 2^nd Edition (Processing in E-Discovery, a Primer), “processing is the "black box" between preservation/collection and review/analysis.” This means it is necessary to process ESI before it can be reviewed or analyzed.

In the processing stage, ESI is catalogued and indexed to streamline the search and review process. As a result, ESI is normalized, achieving uniformity for indexing and search purposes. To achieve this, it is necessary to use ESI processing tools.

ESI processing tools perform the five following functions:

1. Decompress, unpack, and fully explore ingested items;
2. Identify and apply templates to encoded data to interpret contents and extract text, embedded objects, and metadata;
3. Track and hash items processed, enumerating and unitizing all times and tracking filters;
4. Normalize and tokenize text and data and create an index and database of extracted information; and
5. Cull data by file type, date, lexical content, hash value, and other criteria.

Once processing is complete, ESI is normalized, making it easier to search and access. This is why it’s crucial for attorneys to understand the importance of processing when it comes to ESI.

For a deeper look at processing, read Chapter 11 of Essentials of E-Discovery, 2^nd Edition. (Save 20% off this title with promo code edisc20)

Social Media in E-Discovery

As commonplace as social media has become, the concept of e-discovery may seem daunting in the context of social media platforms.  And it is, but that doesn’t mean it’s impossible to understand.

According to a recent study from Statista, there were 5.44 billion internet users worldwide as of April 2024. Of this total, 5.07 billion were on social media. In the United States, as of 2023, 246 million or 72.5% of Americans are active on social media.

While many social media sites feature public-facing posts, the process of discovery of social media content is not as clear as it may appear. Social media sites have their own policies and procedures for requesting personal information about their users.

The Importance of a Narrowly Tailored Subpoena Request

In Chapter 20 of Essentials of E-Discovery, 2^nd Edition, Justice John G. Browning offers the following suggestion. “Instead of attempting to subpoena websites directly, it is simpler to request social media activity through discovery for the party who controls the account.” A narrowly tailored request to the party controlling the account may be more effective than attempting to subpoena the website directly.

Social media files consist of more than just posts. Related links, videos, embedded files, and metadata make up every individual’s social media profile. Although screenshots are commonly used in social media discovery, they may be insufficient in that they capture none of the metadata or associated content. As such, it is important to capture all the relevant data, not just a copy of a potentially incriminating page.

E-Discovery Software to Archive Social Media Posts in a Forensically Complete, Searchable Format

When archiving social media, it needs to be captured and managed in a forensically complete, searchable, and usable format. An archive that includes all original unaltered source files including HTML, images, video, JavaScript, linked files such as PDFs, and any other data references or linked to the page will provide the best possible preserved copy of any given page.

To achieve this, use a program that captures content in real time and preserves the most accurate copy possible.  This is the best course of action since content is being updated, changed, and deleted on an ongoing basis. Failing to catch those changes will result in missing vital information or evidence. Available programs include X-1 Social Discovery and Nextpoint.

To learn more about the role social media plays in e-discovery, read Chapter 20 of Essentials of E-Discovery, 2^nd Edition. (Save 20% off this title with promo code edisc20)

Privacy Issues in E-Discovery

Privacy issues and social media often go hand in hand. When it comes to e-discovery, cases are mixed at the federal level with respect to data where the social media user has used a privacy setting to render the information not generally public.

In chapter 24 of Essentials of E-Discovery, 2^nd Edition, David J. Kessler, Sue Ross, and Max Kellogg delve deeply into “the discovery of information that may be protected by rules or laws related to the privacy of the individual whose information is being requested.”

A Conflicting View on Privacy

While the Texas Supreme Court holds that the Texas Constitution “protects personal privacy from unreasonable intrusion,” there have been various cases that have changed the perspective of privacy. Further, the United States does not have a single federal privacy law. Instead, there are various laws that focus on the type of data to be protected.

For this blog post, we will highlight the chapter’s section on social media. Two federal district court cases from 2010 illustrate contrasting views regarding social media in e-discovery.

In Crispin v. Christian Audigier, Inc., the court in the Central District of California found social media site information like employment and bank records for purposes of standing and found that those records that "are not readily accessible to the general public" may be beyond the reach of a subpoena.

Whereas in E.E.O.C. v. Simply Storage Management, LLC, a court in the Southern District of Indiana ruled that "a person's expectations and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery."

For a look at various topics related to privacy, such as protecting data through discovery and privacy laws that may affect e-discovery, read Chapter 24 of Essentials of E-Discovery, 2^nd Edition. (Save 20% off this title with promo code edisc20)

Gain a Deeper Understanding of E-Discovery in 2024

The topic of e-discovery is vast, and it will continue to be so for the foreseeable future. This blog post barely scratched the surface of all which factors into e-discovery. For a closer look of the topics mentioned above, read Essentials of E-Discovery, 2^nd Edition.

Resources and Further Reading

• E-Discovery: Direct Access Of Electronic Devices After In Re Marion Shipman by Dustin B. Benham
• E-Discovery: Protect the Contents of Cloud File-Sharing Accounts with Fused Hyperlinks by Pierre Grosdidier
• E-Discovery Update – A Dozen Nips and Tucks for E-Discovery
• How to Conduct Your eDiscovery in a Cost-Effective and Defensible Manner
• Advanced Evidence and Discovery 2024 (Video Replay)