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Evidence for a legal case can come in a variety of forms—emails, electronic and physical documents, photos, etc.—all of which can be used to prove or disprove the allegations in a case. These days, the average person keeps much of that information online, including posting on social media, which is why more and more cases are bringing posts from Facebook, Twitter, and other platforms into the evidence mix. In fact, 52% of lawyers have reported an increase in lawsuits related to social media in the past two years, according to a Robert Half survey.
Because social media is such an everyday part of people’s lives, both personally and professionally, it can be easy to forget that the content is there for almost anyone to see. But it is. And it can be a big factor in litigation, especially if disputing medical malpractice or insurance claims. People may post photos or information that is contrary to what’s presented in their lawsuit or investigation and incriminating themselves. They may see it as purely social interaction, but it can hold much more weight, and this evidence can’t be ignored.
Here are a few common questions surrounding social media and its role in e-discovery.
What’s discoverable?
Pretty much anything posted publicly on a social media channel is fair game. According to an article from the American Bar Association, “social media evidence must pass the same barriers as other types of trial evidence: relevance, authentication, and Rule 403, among others.” That means it is viewed similarly to more common file types, like emails or Word documents.
The best way to get to social media data is to have direct access to the account. That means getting login information from the person(s) involved, which may or may not be provided voluntarily. Courts have been known to compel access to social media sites, such as in Forman v. Henkin or McMillen v. Hummingbird Speedway.
In other cases, it comes down to good old investigative work to find the information you’re looking for. Although privacy settings can keep users from outside a person’s network from seeing the content, sometimes there are other ways to gather evidence, such as through a friend or family member’s account. For example, someone may claim he hurt his leg while on the job and that he can’t walk, but another account may show him in a photo of a group that just completed a hiking trail. Regardless of how the social media evidence is found, it can make a big difference in a legal matter, such as in the case of Commonwealth v. Foster when the court ruled that photos of guns, drugs, and other paraphernalia posted on Foster’s social media were in violation of his probation, resulting in 11-23 more months in prison followed by seven years of probation.
What expertise is needed?
Simply put, you’ll need to find the right team that can get the evidence you’re looking for. Each new social platform comes with its own set of rules and procedures, so it’s important for attorneys to choose an investigative team that understands what’s permissible and what isn’t and that works within the law and the access granted by the platform and individuals.
The ideal group should include certified forensic examiners, private investigators and e-discovery professionals who have experience finding, analyzing, and validating social media evidence. This type of diverse team can work together to ensure that the data discovered and collected is forensic and defensible, that analysis and further investigation are handled completely and accurately, and that files are preserved correctly and securely. Working with this kind of team also ensures you have expert witnesses, in case you need them to speak to their findings in court.
How does social media discovery work?
Using forensic and investigative protocols and best practices, data is searched for, collected, and indexed from social media streams, linked content and websites, application program interfaces (APIs), as well as webmail connectors and direct web navigation. Then every file is authenticated and assigned a hash value, which provides an additional level of security to ensure that no one has tampered with the data.
Throughout the process, your team should log all actions and generate reports. When the relevant data has been located, it can be loaded into a typical legal review platform, allowing counsel the opportunity to search, sort, and tag the data similar to any other legal case. It can also be produced as needed for court.
How has social media discovery been used?
Here is a quick breakdown of two cases where social media discovery played an important role.
“The Lying Lifeguard”
In this workers’ compensation claim, a college-age lifeguard cut her Achilles tendon at work on a pipe at the pool. She claimed she had gone through a lot of pain and suffering and was unable to enjoy life. However, forensic experts and private investigators found her social media, which linked to her blog. The blog not only showed photos of her with healthy feet but also that she was taking exotic vacations to locations like Bali and Australia and climbing waterfalls. She was clearly not as impaired as she claimed.
“The Bogus Birth Injury”
Parents of a third grader claimed medical malpractice when their child allegedly suffered injuries at birth. They claimed the child had never been mobile or athletic and was unable to enjoy the same activities as other children. But according to discovered social media posts, the child grew up attending football and soccer camps and was able to run the 100-yard dash as fast as an eighth grader.
Because of social media discovery, these people were caught in the act of committing fraud. Online channels can be gold mines for finding evidence, and social media is becoming a common piece of the data collected for investigations and litigation. With that, it’s important to understand the process and to have the right team in place to help you find what you need.
