This is the third in a three-part series explaining the role of social media and website evidence in litigation. Part One focused on understanding the rules for authenticating social media. Part Two walked through the tests used to authenticate digital evidence in court.
Litigating in the age of social media is like trying to solve a really frustrating cold case. The victim’s body is missing, and the only clues you have are a lot of unsubstantiated rumors and out-of-date information.
That’s because while social media in eDiscovery is potentially rich source of evidence for many types of litigation, the original posts and tweets often disappear from the original provider’s servers, while retweets and repostings may be scattered throughout the Internet.
In the Internet age we live in, any tweet, web page, or Facebook post could be central to your case. Lawyers must be able to piece together a story for a judge, jury, or federal regulator based on a single piece of content from the Internet. Do you have the tools to investigate content from the web and make it tell you its life story? Or is it just a lifeless and inert piece of Internet debris, stripped of meaning and useless as evidence?
Irrefutable Evidence from Impermanent Sources
When litigation or regulatory requests require social media and eDiscovery expertise, your legal team must be digital Crime Scene Investigators, piecing together the last days in the life of a tweet or post. Where did that post or tweet go, who did it meet, and who was the last person to see it?
These are questions that can be answered only if you have captured and archived the right information. Digital evidence offers details and clues no forensic examiner can ever hope to discover- if you know how to find it.
Fortunately, authenticating social media and other web content in eDiscovery is not an exotic or new field of the law. As discussed in our previous post, the framework for finding proof of authorship should be familiar to lawyers and judges familiar with the Federal Rules of Evidence. The key to making the authentication process work is in the details hidden in every social media post- usually in the form of metadata.
Anatomy of a Tweet
Data preservations have to be forensically sound to be effective. Screenshots of social media are simply not sufficient because social media files consist of more than just posts. They consist of related links, videos, embedded files, and metadata, all of which is all part of the record. Archiving just a social media post is like to saving an email without the attachment. In one commonly cited case, Griffin v. State, the court overturned a murder conviction at least in part over a failure to authenticate evidence obtained from a MySpace profile, which had been presented as a printout.
And as discussed in our earlier posts, forensic analysis will be necessary to ensure your social media evidence is given proper consideration. That’s because digital evidence like social media will often be entered into the record conditionally. For example, in Lorraine v. Markel American Insurance Co,, the court said that to enter social media evidence into litigation parties do not need to completely authenticate it. As Judge Paul Grimm, the judge in that matter wrote, “the court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury might ultimately do so.’”
Lawyers cannot simply leave it up to a jury to determining how much weight, if any, to give evidence. It is your job as a litigator to win that battle, and you need to be able to marshall all the facts to your side. When a conditional relevance issue arises, the proper action for the trial judge to take is to admit the evidence and instruct the jurors that if they find the evidence compelling, they may consider the evidence, giving it the weight they think it deserves. If they side with the party opposed to the information, however, they will not consider the evidence at all.
Performing a Social Media Autopsy
Unfortunately, many attorneys fail to perform forensically accurate discovery for social media. As social media evidence is increasingly common in litigation, it is important to capture all of the related data, not just a copy of a potentially incriminating page. Social media content is dynamic, which means it is continually changing, and often looks different to different users.
Any social media archive needs to be captured and managed in a forensically complete, searchable, and usable format. Otherwise, even the best litigation preparedness strategy falls apart. Always assume that captured data will have to someday be searched, reviewed, and produced to opposing counsel or regulators. Any workable solution must be able to perform all phases of eDiscovery review and production for any archived website or social media property.
Unfortunately, screenshots are still commonly used in social media discovery, although it captures none of the metadata or associated content. That cold case approach will settle nothing, and may even lead the judge or jury in a matter to simply disregard your otherwise compelling social media evidence.