Our team of experts at Page Vault hear this question almost daily: “Can social media be used as admissible evidence in a court of law?” Whether you’re a legal professional looking for answers on Facebook posts and comments, Instagram pictures, Twitter tweets or YouTube videos, the short answer is yes; both public and private social media content can be admissible in litigation.
At Page Vault, we specialize in helping legal professionals capture and preserve web content such as web pages, websites, social media, videos, and images. It’s important to remember that there are best practices to follow when collecting social media content that strengthens a web capture’s admissibility.
Here are the top six that we recommend to all legal professionals:
Best Practice 1: Capture Content in Full
Capture an entire social media profile including all profile sections, such as Facebook About, Groups, and Friends pages. In addition to all sections, capture all posts and comments (including scrolling, expandable and archived content) within a profile to not only have it documented in case it gets deleted, but also to provide the full context of the posts and conversations.
Many cases, such as IL v. Lorenzo Kent, demonstrate why it’s vital to capture an entire Facebook profile and not just parts of it.
Best Practice 2: Know the Hiding Spots
Social media platforms have numerous tabs and expandable comments that contain content that may not be immediately visible. Since these platforms change constantly, be certain to know—or ask an expert—where evidence may hide within each platform.
For example, in a recent rape trial out of England, law enforcement was unfamiliar with Facebook and failed to collect conversations that would have proved a young man innocent prior to him being wrongfully convicted.
Best Practice 3: Collect Key Metadata
Capture all metadata associated with the content to prove authenticity (IP addresses, timestamps, URLs, etc.). Even if you don’t think you’ll need it, it’s always safer to collect it from the start.
Best Practice 4: Stay Out of the Chain of Custody
Leverage web collection technology that serves as a trusted third-party and removes attorneys and their staff from the chain of custody. If you or your staff handle the collection directly, you may become unnecessarily involved in a case.
Best Practice 5: Support Your Evidence with Affidavits
Obtain an affidavit to verify the authenticity of the web capture technology and the capture method.
Best Practice 6: Document Content Accurately
Capture a true and accurate representation of the web content so that when saving or printing, it looks exactly like it appears online and won’t cause confusion if presented in court.
If a legal professional is not able to follow these best practices, it’s better to work with a web collection service designed for legal that would be able to properly assist and collect specified web content during discovery or litigation.
Other Information You Need to Know About Admissible Social Media Evidence:
- In 2017, the Federal Rules of Evidence (FRE) were amended to add two additional sections (Rule 902(13) and (14)) that address electronic data and authentication, including web evidence. Prior to these amendments, an attorney would have needed an expert sworn in to testify to the authenticity of the web evidence. Now, a certification from a qualified e-Discovery collection expert can attest to the authenticity. Read more web evidence collection rules.
- An attorney has ethical responsibilities when searching on social media platforms and collecting content to be used as evidence. For instance, it’s unethical to attempt to gain access to private content or a private Facebook account in a deceitful manner (e.g. “friending” someone to gain access to non-public content), or advise a client to change their social media content so as to tamper with evidence. Even failing to stay up to date on current technology platforms can cause ethical issues for attorneys when advising clients. Read more about social media ethics.
Our team will be at ABA Techshow 2018 to help attendees answer more questions like this.
Find us at booth #317 in the Exhibit Hall at the Hyatt Regency Chicago from March 7-9.
About Page Vault
Page Vault helps legal professionals to capture and preserve web content such as web pages, websites, social media, videos, and images. Users can have confidence in knowing that Page Vault’s collection experts accurately preserve all necessary content and supporting data within the requested output format. Whether using their in-house software or vendor services, Page Vault can accommodate projects of any volume or complexity. www.page-vault.com