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Special to the DCN/JOC: eDiscovery and social media

Candice Chan-Glasgow
Special to the DCN/JOC: eDiscovery and social media

Social media is defined by Merriam-Webster as “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos).”

Many construction organizations across Canada are active on social media platforms and have accumulated thousands of followers on Twitter and LinkedIn. This article will explore some eDiscovery considerations for organizations with a social media presence.

Social media content presents some unique challenges with respect to the preservation, collection and production of electronically stored information (ESI). First, social media content is dynamic and can be easily modified or deleted. Moreover, social media content is hosted by a third-party provider and not on an organization’s own servers. Last, specialized tools may be required to properly capture the content and various metadata associated with the social media content.

Organizations facing potential litigation should first consider whether their social media content is potentially relevant to the dispute such that it would need to be preserved. In Canadian common law jurisdictions, as soon as litigation is reasonably contemplated, parties have an obligation to take reasonable and good faith steps to preserve potentially relevant ESI. Preservation of ESI, and the consequences of failing to preserve, is discussed in more detail in our previous article.

If it is determined the social media content should be preserved, parties to the litigation should consider preservation by collection to avoid losing the data. Not only can social media content be easily modified or deleted, but it is also possible that social media providers could terminate service or go out of business, resulting in loss of the data.

Although many social media platforms have ways for users to download their own content from the platform, it is important to note these archival downloads may be incomplete.

For example, a Twitter archive download does not include any messages exchanged with other users. The format of the archival download may also be difficult to review. There are specialized tools available which will capture both the content and various metadata associated with the data in a format that facilitates search and review of the content. The metadata collected can also help with potential authentication of the evidence.

Due to these unique challenges, it is best to discuss production of social media sources during discovery planning. The issues of relevance and proportionality (how much time, effort and expense is reasonable) should be discussed between the parties. It is also worth considering whether there are other ESI sources with duplicative content that would eliminate the need to collect from social media. For example, any videos or photos posted to a company’s Twitter page likely also exists independently on the company’s servers.

Social media content is a unique form of ESI that requires special consideration and planning. Given the rapidly changing popularity of social media platforms, new challenges will undoubtedly arise as the technology continues to evolve. It is important for organizations with a social media presence to be aware of these challenges.

Candice Chan-Glasgow is director of review services and counsel at Heuristica Discovery Counsel LLP, which has offices in Toronto and Calgary. It is the sole national law firm whose practice is limited to eDiscovery and electronic evidence.

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