Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m S E P T E M B E R 2 0 1 5 19 have identified as irresponsible or uneth- ical. This is particularly important when using social media against an individual litigant, represented or otherwise. Regu- lators that have issued opinions on the ethical use of social media have noted that "friending" someone in order to gain access to their profile information is never appropriate. It is also not appro- priate to invent a fictitious profile to lurk on opposing litigants' pages. Generally, I stop at Google and in-app searches for public information and then ask oppos- ing parties for information from the accounts I have uncovered. Once you have identified target social media, you need to develop a plan for its collection. For public accounts (and by this I mean accounts where the entire profile is made public and visible over the Internet), it is possible to collect the information by using a collection tool. The one I use most frequently is X1 Social Media because it can defensi- bly capture and reassemble most public social media channels. While I always recommend electronic (native) capture of social media, there are times when I have captured screen shots or print- outs of postings — particularly where I have been concerned an opposing party would disable or hide an account. The screen captures (with date stamps) have been helpful in proving the existence of the account and content at the time of the screen capture. Where accounts are subject to pri- vacy settings, access to the account may be required, and collection will fall to the account holder to implement. Some apps, such as Facebook and Google+, have developed in-app collection capa- bilities. There are excellent guides avail- able about how to use these tools, and I frequently use Google Takeout to col- lect anything on Google Drive. I always ask my client to temporarily change the password to something innocuous before turning over the account to me or a third party for collection, and then immediately re-change the password after collection. The value of a proper collection is that metadata is preserved. The meta- data might include information to align the elements of social media with each other (re-aggregating the page when reassembled after collection). However, many social media have geolocation or geotagging capabilities and the meta- data can reveal a lot about the post and where the user was at the time of the post. This information will not be available if social media is not collected electronically. There are additional and idiosyncratic challenges associated with social media collection. For example, Twitter can "cap" the number of tweets it retains, meaning the longer you leave collection of Twitter, the more likely it is that "older" mes- sages will be difficult to retrieve. How- ever, social media collection is becoming increasingly documented and is current- ly a hot topic in the CLE circuit, so there's no longer any reason to avoid this valu- able source of evidence. Dera J. Nevin is the director of e-discovery services at Proskauer Rose LLP. The opin- ions in this article are entirely her own. Untitled-2 1 2015-08-21 12:28 PM

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