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In the Internet’s early days, courts viewed the web as a wild west, rife with unreliable and ephemeral claims and statements. In 1999, the judge in St. Clair v. Johnny’s Oyster & Shrimp, Inc., expressed extreme skepticism about the worth of evidence on the web:
“…the Court continues to warily and wearily view [the web] largely as one large catalyst for rumor, innuendo, and misinformation. There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet. . . . Moreover, the Court holds no illusions that hackers can adulterate the content on any website from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing . . . Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt for hard copy backup documentation in admissible form . . . “ (emphasis added).
Times have changed and the absolute skepticism surrounding the internet as a repository of evidence has evaporated. Judge Paul Grimm’s opinion in Lorraine v. Markel (2007) laid the ground rules for authentication and admission of electronically stored evidence (ESI) and argued for an appropriate application of existing Federal Rules of Evidence to ESI. More and more, especially spurred by the advent of social media platforms, webpages are appearing in court cases, sometimes in starring roles.
Legal professionals are now turning to the web for evidence, not just for reference. At Page Vault, we provide software specifically designed for legal professionals to capture webpages as evidence, and we’ve encountered many interesting examples where webpage evidence was crucial. We share some of them below illustrate the growing role for web-based captures in a law practice. Hopefully, this list will help you think of some ways in which you may not yet be using the web to its full potential.
Disability and Injury Defense: It’s amazing what people will post
Many legal professionals practicing in personal injury, workers’ compensation, and insurance defense now comb claimant’s social media profiles for evidence. We’ve seen numerous cases where persons claiming a disability post statements and even pictures that contravene their claims.
In U.S. v. Brandy Lemons (2015), Brandy Lemons began receiving social security disability benefits due to arachnoiditis, a pain disorder. She claimed that all physical activity caused her additional pain in her neck, back, and legs and severely limited her activities.
Her condition was supposedly so painful and limiting that in a disability review for Social Security, she wrote that arachnoiditis “is not a condition that will improve over time. . . I hope that another review is not necessary because holding my head down filling out this form is causing increased pain in my neck and back.”
But unfortunately for the claimant, her social media profiles painted a very different picture: investigators discovered posts on her Facebook page suggesting she hunted game with a bow, attended hunter safety classes, and even rode an all-terrain vehicle for two hours! Statements she made on Facebook and entered into evidence by the prosecution included:
- “I can shoot my bow all I want to here at the house, but I am soooo ready to move so I can walk out my back door and let the lead fly!”
- “Goin to look at 95 acres in the morning. . . . If the land ain’t right for us at least I get to spend some time with my wonderful husband and enjoy Gods great creation from the back of a 4 wheeler.”
- “The land wasn’t exactly what we [are] looking for. . . . But we spent 2 hours ridin and lookin and I only had to tell him which way to go a dozen times!
Lemons was convicted for making false statements to the govemment and theft of government funds, all because of what was discovered within her social media posts.
Intellectual Property: Go to the source (code)!
Sometimes, the evidence that investigators are looking for does not appear on the webpage itself, but rather is hidden in the source code for the page. Source code is is the computer code that is sent to a user’s web browser and instructs how the user’s browser should render and display the page. Most users never view the source code itself, but sometimes it contains information that is not displayed on the page itself, but is crucial for an investigator.
Source code has been used as evidence in intellectual property cases in several ways.
Insituform Technologies Inc. v. National Envirotech Group, LLC (1997) appears to be the first legal ruling involving trademarked metatags. The plaintiff claimed that lines of source code called metatags in the defendant’s page included the name of the plaintiff’s product. The defendants allegedly had done this to redirect search traffic toward their own site. While the trademarked term never appeared in the page when viewed, its inclusion in the source code leveraged the plaintiff’s brand equity to increase traffic to the site.
Such cases have mostly disappeared as search engines have become increasingly sophisticated, and can no longer be “fooled” by the illicit use of trademarked terms in source code.
However, source code can still provide clues regarding the identity of a website’s administrator, e.g. when fighting the online marketing of “knock-offs,” counterfeit luxury goods that use recognized trademarks without permission. The ease with which web domains can be set up has allowed sellers of counterfeit goods a worldwide market to sell their goods. Such operations can run hundreds or even thousands of separate domains in order to cover their tracks.
In Chanel v. Dror Krispin (2008), investigator Rob Holmes, founder and CEO of IPCybercrime, established connections between vast networks of counterfeit sales sites by recording their source code. The key to a successful anti-counterfeiting operation is demonstrating that otherwise apparently unconnected websites are in fact administered by the same business.
Holmes examined the websites’ analytics account codes hidden in each page’s source code–the codes that help website administrators understand traffic patterns to their websites. Holmes noticed that the analytics account numbers were the same on otherwise unrelated pages. With this evidence, he was able to establish that the websites represented pattern and intent to market counterfeit goods on a large scale.
Spoliation: why don’t people believe their social media is discoverable?
Online evidence is subject to the same strictures any other material; however, even legal professionals seem to regard (potential) evidence online as somehow less “real.”
In Lester v. Allied Concrete, plaintiff’s counsel advised the plaintiff to “clean up” his facebook page and remove photographs that counsel felt would prejudice the jury against the plaintiff. Although the plaintiff won the case with a $10 million judgement, the Court later fined the plaintiff over $700,000, most of which was to be paid by counsel, and suspended the plaintiff’s counsel for five years.
Why do (even well-educated) attorneys seem to think that Facebook material is not subject to spoliation provisions? Most people don’t think of the contents of their social media accounts as ‘records’ subject to legal hold or discovery. But courts are clear that social media contents, even if hidden from the general public, are subject to discovery requests.
As a result, we are seeing an increase in the amount of “precautionary captures.” Immediately upon receiving notice of a claim, attorneys will simply capture everything they can on the opposing party’s social media, including public posts and profiles of friends and family. The object is not investigative, but as insurance against the opposing party destroying posts that may later turn out to be relevant evidence. At the very least, the attorney then has proof that spoliation has occurred.
We also see more attorneys at the outset of a case working their clients to record the client’s own social media as a guard against claims of spoliation. Responsible attorneys are alert to the possibility that social media evidence may be subject to legal hold, and advise their clients accordingly.
Some attorneys may believe they can simply subpoena the social media provider for lost records. However, under the Stored Communications Act, social media companies will generally not turn over content from an account to a private party (law enforcement and other public entities can successfully subpoena information); they are only required to turn over basic information about the account owner; Facebook, for example, is very clear that it will not release account contents to private third parties. Legal professionals hoping that discovery requests or subpoenas served to social media providers may be disappointed. The best policy is to make good records at the beginning of cases that can support later legal holds or discovery requests.
Appropriate productions: informed courts, uninformed attorneys?
Courts are now much more knowledgeable about procedures for handling ESI, even if some attorneys are not. In Wellin v. Wellin (2015), certain parties to the case were requested to produce “all responsive electronic data in its native format.” One of those parties “provided the content of several text message exchanges and Facebook posts by transcribing those messages on loose-leaf paper.” (Yes, you read that correctly… they transcribed voluminous social media posts by hand onto looseleaf paper.)
The Court subsequently granted a motion to compel production in native format and with metadata. The Court was asking that material be produced in the format in which it originally appeared, and that the material be accompanied by information about the content; for example, the date it was captured and the URL address where it was found. In this case, screenshots of the pages in question would likely have been appropriate so long as they showed the posts as the posts actually appear on Facebook. The best practice in such a case is to use software designed for legal-grade webpage capture, such as Page Vault. Such software can save time, standardizes productions, records metadata automatically, and authenticates the pages.
Contract Enforcement: an ounce of prevention is worth a pound of cure
Legal professionals are using the web in increasingly proactive ways. Page Vault was recently consulted in a case where an attorney’s firm represented a company that showcased t-shirt designs online. The company had (literally) thousands of designs; their competitive advantage lay in both the large variety and quality of the designs.
One of the company’s top designers was leaving the company. The designer’s contract included a clause that specified that all designs made during his employment belonged to the company. In order to enforce this clause, the company used Page Vault to capture every page of their online catalogue featuring that designer’s work.
In this case, the company had an (authenticated) record going forward of all of their intellectual property as of the date the designer’s employment ended. While both sides certainly hope such a separation is amicable, such records can prove invaluable in later actions.
In such uses cases, timestamping evidence is an excellent precaution: digital timestamps (administered by a trusted third party) establish that an electronic file existed at the time of the timestamp and has not been subsequently altered.
The Evidence is Out There
Material on the web is no less “evidence” than material in a file cabinet or in print. It presents new and different challenges for attorneys: attorneys should go to the web without delay when there is notice of a claim, and should err on the side of capturing too much material too soon–what was posted today may disappear tomorrow. And be proactive–capture material at the outset of a case, even if it doesn’t seem relevant, or make timestamped records of content on the web in view of possible later legal issues.
About the Author
Stephen Nazaran is CFO and co-founder of Page Vault, a company dedicated to easily capturing webpage content in a way that is forensically defensible and legally admissible. Learn more at www.page-vault.com.
stephen@page-vault.com
574-876-9350
Page Vault
321 N Clark Street Suite 2550
Chicago, IL 60654
