“Preserving and Producing Data from Social Media Sites” by Sharon Nelson and John Simek was featured in the Winter 2020 Newsletter published by the Local Government Section of the Virginia State Bar. The Local Government Section of the VSB provides assistance and support to public and private practitioners of local government law through the sponsorship of programs that provide a forum for section members to share research source materials and experiences. A section newsletter addressing issues in this area of law is published quarterly.
Excerpt: This article supplements another in this Journal, “18th Century Law Meets 21st Century Facts.” As that article noted, governmental use of these social media sites creates the need for data to be preserved and retained under the Freedom of Information Act (FOIA) and the Public Records Act. It is also important to comply with the need to preserve and produce evidence in the event of a litigation hold.
Our charge was to produce a practical guide to that preservation and production, aware that advising clients on these issues has been a major headache. It doesn’t help that social media sites are constantly changing their methodology of preserving and producing data. Readers are therefore forewarned that the instructions below were current as of the time this article was written but some procedures may have been subsequently altered.
Let’s address the preservation and production of social media evidence first. If you are under a litigation hold or have another reason to preserve social media evidence, the advice certainly is to not delete any current data. While we can’t address how to preserve all of the various sources of evidence, the following are some of the more popular and common ones. Keep in mind that not all available data can be preserved or exported. Also, some particular data elements (e.g. history) may be available, but the process may be more complicated and difficult to perform.