Lawyers cannot afford to ignore social media when collecting evidence.
X1 Discovery estimates that hundreds of thousands of cases involved evidence collected from social media between 2015 and 2016. X1 also presumes there are even more situations in which social media evidence factored into investigations that never moved on to litigation.
As social media usage continues to rise, so does the collection of evidence from the medium. Here’s what you need to know about using social media to collect evidence—and why you shouldn’t ignore this channel.
Of course, collecting evidence from social media does not come without its challenges. It’s still new (Twitter and Facebook are only 10 and 12 years old respectively), and the social media landscape is changing faster than the law. Issues of authentication and admissibility abound.
As Justin P. Murphy and Adrian Fontecilla of Crowell & Moring’s Washington explain, “the unique nature of social media—as well as the ease with which it can be manipulated or falsified—creates hurdles to admissibility not faced with other evidence.” For example, it’s easy enough to hack into someone else’s Facebook account, so in certain instances, there may be doubt as to whether the person posting was actually the account owner.
Also, if the information you want to access is on a private profile, it may be difficult to get. Subpoenas, sometimes requiring court orders, may be involved. Even then, social media providers do not give up their users’ information easily—Facebook will directly provide user content in criminal investigations, but not in civil cases to nongovernmental entities, pursuant to the Stored Communications Act. The type of case you are trying will determine the methods you need to utilize to access and authenticate social media evidence.
There’s no “friending” people to see private accounts either—Murphy and Fontecilla point out those tactics haven’t passed ethical muster in the past.
Risks of Ignoring Social Media
Despite its challenges, lawyers cannot afford to ignore social media when collecting evidence. Do so, and you risk missing something that could potentially change your case’s outcome.
Consider: in the July 2016 case, Xiong v. Knight Transportation, Knight found additional social media evidence after the original trial that suggested Xiong was not as injured as she claimed. The judge rejected Knight’s motion for a new trial, finding, among other things, that “the new evidence could have been discovered before trial and Knight offered no justification for its failure to develop it earlier.”
What to look for
Social media posts can be valuable for finding contradictions to prior statements (e.g., a photo showing that someone is happy and healthy despite claims of injury). However, it isn’t just the message, but the metadata that is important.
Metadata, or data about data, can be more useful than the post itself. This data may reveal the time, location, and even the device the message was posted on. Ensure that your collection methods preserve the metadata of social media posts.
Also, it’s worth questioning the other party on the breadth of their social media use. Dera Nevin of Proskauer Rose LLP writes:
Embarking on social media discovery is a bit like going on a safari: Everyone knows of and wants to see the Big Five (LinkedIn, Facebook, Twitter, Instagram, Pinterest), but if you look closely, 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.
Whatever you find, make sure it gets preserved. Social media accounts can suddenly be switched to “private,” and offending posts can be deleted, or even altered. Time stamped screenshots or archived pages can be useful on this front. That said, familiarize yourself with acceptable methods of authentication in your jurisdiction before you choose a route. For example, this post from the CEB outlines several cases on how to authenticate evidence.
Learn more about authentication and log some CLE hours with this Webinar from the ABA on preserving and authenticating websites and social media.
In reality, you may not have time to collect evidence using social media on your own. Sifting through mounds of Twitter and Facebook posts for a few relevant tidbits—and ensuring that nothing gets altered or lost—is a time-consuming and error-prone process.
Luckily, there are a few third-party tools you can turn to.
For example, Hanzo Archives offers a social media collection tool that captures and stores all information required to prove the authenticity of posts. The tool also has a playback feature that allows users to browse archived content. WebPreserver is a Chrome plugin that creates legally admissible screen captures, including metadata and digital signatures for authentication.
Finally, X1 Discovery, mentioned above, has a Social Discovery offering that brings data from multiple social media accounts into a single user interface. This makes your collected posts easy to work with.
Whatever you use, make sure that you’re looking to social media as part of your discovery process.
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