Facebook Download is Self Collection

Patrick DiDomenico does a great job of testing out Facebook’s “Download your Information” feature and testing exactly how useful it would be as a form of electronic discovery.

He concludes:

According to my test, the Facebook DYI feature gathers a user’s information as it appears in their Facebook account at the time of the initiation of the procedure. The feature does not appear to “look back” and recover deleted information in the user’s account. Thus, if a Facebook user deletes account information prior to initiating the DYI procedure, that deleted information will not appear in the downloaded file. Furthermore, the downloaded file contains no indication that data was deleted.

Based on these findings, it is inadvisable for lawyers to rely solely on the Download Your Information feature for discovery of an adversary’s Facebook information. The feature gives no assurance that a litigant’s attempt to delete evidence will be revealed. Obtaining the data directly from Facebook, for example, via subpoena, may be a better approach. The question remains, of course, whether the data produced by Facebook will include user-deleted data. According to Facebook’s Privacy Policy, “deleted information may persist in backup copies for up to 90 days,” so there is a possibility that subpoenaed data will, in fact, include relevant information.

Of course, my immediate thought as I read this was that the download your information is a super easy form of self-collection, however it is still self-collection, which comes with all of the associated risks of someone deleting information before conducting their collection, or knowingly or unwittingly skipping certain data in their collection, etc. It’s almost always better to have a third party do the collecting in order to avoid that sort of risk. As easy as Facebook’s tool is, you want to be able to verify that a user is not deleting things before initiating the process.

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