In Part 1 of this article, we discussed sources of evidence that individuals create on social media accounts, on their smart phones and in the cloud. In Part 2, we will discuss the role this content plays in many types of civil and criminal cases, where it is used by companies, government agencies and other organizations in both defensive and offensive ways. In Part 3, we will discuss practical tips for acquiring, searching for and using this valuable evidence.
Preservation and Discoverability
It is well established that social media and web-based content is discoverable. Courts follow a traditional discoverability analysis in which the following questions must be answered in the affirmative: Is the content relevant to a party’s claim or defense? Is it subject to a privilege? Is it reasonably calculated to lead to the discovery of admissible evidence? Is it proportional to the case?
In one early case, a party argued that he had a privacy interest in social media content which prohibited production. The court disagreed, saying that social media content was public or quasi-public, and that, in relation to a site like Facebook, even certain “private” content may wind up being more widely available depending on features like “tags.” In one employment case, the initiating regulatory agency argued that the social media content belonging to the complainant was not relevant. Again, the court disagreed, saying that the complainant had put her emotional state at issue when her claims included allegations of mental distress caused by the employer, and social media content was very likely to contain evidence of her emotions. We thus see that there is no “social media privilege,” and that judges have a surprisingly sophisticated view of the relevance of social media content.
Not surprisingly, courts won’t allow a fishing expedition into a party’s social media presence. A court declined to order production of a user name and password where the public-facing content did not suggest that private content would be relevant. In another case, an order to produce all Facebook content was reversed for a more particularized determination of whether specific content existed that was relevant and production-worthy. When relevance was challenged in a personal injury case, a judge sought to protect the discovery of irrelevant material by setting up his own Facebook account, “friending” the witness, reviewing the content in camera and making a production ruling, then closing out his account.
How does a party gain access for discovery purposes to social media and other Internet content? Simply put, ask for the user name and password in a discovery request. This is a better, more direct and quicker route than issuing a subpoena to the provider, unless the parties are seeking log information and other metadata, in which case a subpoena directly to the provider is required. Today, discovery of social media, blogs and other internet user-created content has entered the mainstream and is negotiated and managed during meet-and-confer sessions and ultimately, through court-approved protocols. The best method to acquire web-based personal content is to secure the services of a vendor whose trained and certified forensic engineers use software designed for the purpose of acquiring this content.
It is equally well established that a legal obligation to preserve discoverable evidence applies to Internet content created and maintained by a party just as it applies to other types of evidence. In one case, a plaintiff who removed personal website photos during trial was barred from introducing evidence of mental distress. A particularly flagrant instance of deliberate spoliation of social media content as directed by a party’s lawyer led to a $522,000 fine and referral of the lawyer to the state ethics board.
Web and Social Media Content Enter the Evidence Mainstream
User-created content on social media and Internet sites has leveled the litigation playing field for defendant companies and organizations. For example, evidence used by defendants to challenge personal injury and product liability claims has been harvested from social media sites, where plaintiffs have displayed pictures and posts of activities, travel and events that undermined their claims of injury and diminished quality of life.
In addition to such defensive uses of social media and web-based content, companies, government entities and organizations also assert affirmative claims based on pictures, posts, blogs, comments and other Web material. Social media content that employers view as harmful to their business interests has prompted employee termination, leading to wrongful termination cases. An insured’s son’s posts regarding his domicile and principle address shed light on possible insurance fraud. The mere use of social media and Web platforms has led to proceedings seeking revocation of parole and probation where individuals were forbidden by courts to use social media. Courts have awarded or revoked child custody based on social media content deemed by courts as contrary to a child’s best interests. An NFL player’s questioning on Twitter of Osama Bin Laden’s role in the terrorist attacks of September 11, 2001, led to the cancellation of a lucrative contract with a sports apparel company and ensuing litigation by the player for breach of contract.
Law enforcement agencies have developed considerable expertise in mining Web and social media content, notably in prosecutions for possession of child exploitation material. While, regrettably, social media and Internet platforms have proven to be a boon for individuals seeking to view child pornography, state and federal law enforcement agencies have harvested content that supports search and arrest warrants and, ultimately, convictions. Sources of content have included Yahoo! and other Web-based e-mail, Flickr, and even a Yahoo! group set up for the purpose of viewing illegal photos, along with files, photos, links and polls associated with the group. Uploading photos to a Flickr account constituted “distribution” for purposes of the federal statute making it a crime to possess child pornography.
What is “Evidence”, Anyway?
Reporter Ariel Levy recently wrote in the New Yorker about a notorious case in which two Steubenville, Ohio, high school football heroes were prosecuted for raping an intoxicated 16-year old girl. A former town resident and self-proclaimed criminal justice blogger gathered readily available Twitter, Instagram and Facebook content of and about the episode and presented it to local authorities. Rumor and innuendo spiraled out of control, making the episode—and by implication, the victim’s experience and reputation—sound much, much worse than it was. The hacking collective Anonymous got involved, threatening the football team, hacking into the Twitter accounts and voice mails of witnesses’ family members, and posting on their website a You Tube video of a drunken football player riffing on the assault, later viewed more than two million times. Web and social media content is potent evidence, but also has the potential to wreak havoc in our system of justice, as the Steubenville case has shown.
A quick search reveals many hundreds of cases that discuss social media and Web sources of content as evidence in a civil or criminal matter. How does the legal practitioner, traditionally trained, begin to address and make use of this vast array of new evidence, especially given the new ABA Model Rule requiring that lawyers be competent in their knowledge of technology? In Part 3 of this article, we will use these cases as a jumping off point for a discussion of strategies and tactics the modern practitioner can use to uncover the wealth of evidence residing on the Web.