Canadian Lawyer

18 S E P T E M B E R 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m T E C H S U P P O RT dnevin@proskauer.com O P I N I O N Social media is, without doubt, dis- coverable and producible if relevant, not only because courts have under- stood that the point of social media is the erosion of privacy, but also because courts have largely adopted the view that privacy will not trump discover- ability of evidence as long as there isn't an impact on third-party interests. Also, redaction tools have improved. A quick review of recent discovery case law shows that social media is used as evidence in all manner of cases, but it is particularly prevalent in personal injury, employment, family, criminal, and theft of IP or unfair competition matters. And that makes sense: These are primarily personal tools. Further- more, social media are frequently pic- tographic or representational: Shorter text accompanies pictures, but this text is economical and direct. It is compel- ling evidence. Social media are today's e-mail of yesterday: It's where people display their emotions and thoughts, communicate in real time, and exchange important collateral information, such as photo- graphs, videos, and voice recordings. Moreover, since many people access their social media accounts on mobile devices (such as their phones) and either turn "geolocation" services on within social media apps or have other- wise poor privacy practices, collection of social media yields valuable meta- data including date and time stamps for posts. Embarking on social media discov- ery is a bit like going on a safari: Every- one knows of and wants to see the Big Five (LinkedIn, Facebook, Twitter, Ins- tagram, Pinterest), but if you look close- ly, there is an abundance of channels in the social media ecosystem. Spend time early in fact discovery identifying potential sources of social media and custodian interviews. My standard form custodian interviews include developed scripts for social media investigation, tied closely to my scripts on mobile devices and cloud computing. Many corporations have dedicated teams for their corporate social media accounts. Companies troll LinkedIn for candidates or have writers developing content. Companies tweet and have Facebook and Instagram profiles. A quick Google search (or a search with- in an app) can help you identify any accounts held by a corporation. The same searching techniques are available to identify social media accounts for individuals, except a search alone is not conclusive because individuals can both implement privacy settings on their accounts to screen them from search and create profiles using a name other than their legal name. I always directly ask my oppo- nents about their social media activities whether in oral examinations or written interrogatories. Beware of your ethical responsibili- ties when working online and ensure you are avoiding behaviour that regulators ocial media is an important source of discovery in an increasing range of cases and can often yield the most important evidence. Social media and its derivatives are prevalent with many people using social media as their dominant communications channel, preferring some in-app messaging tools to e-mail. Corporations, too, are using these media to target and communicate with their customers. Ignore these sources and you leave potentially game-changing evidence on the table. Early social media case law largely addressed whether privacy con- cerns mitigated the obligation to identify, review, and produce social media communications. It was thought that accessing these sources of infor- mation was too intrusive. In all jurisdictions in Canada, those questions seem to be settled, largely as social media has become familiar even to judges. There's a treasure trove of important evidence to be gained from apps and online posts. By Dera J. Nevin S Social media e-discovery: its time is here

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