Failing to Investigate Facebook posts can be Risky to Attorneys
The popularity of social media sites like Facebook and Twitter makes them instrumental when it comes to eDiscovery. However, the sheer mass of data that can be collected from user profiles may cause attorneys to avoid investigating social media posts. Any evidence gathered must be relevant to the case in order for judges to allow it; yet, examples of not carrying out a thorough enough investigation before entering that evidence are all too common, and puts the case at risk.
Relevance of Social Media
What can Facebook status updates possibly have to do with litigation? Well, imagine a personal injury case that shows the plaintiff as clearly unharmed in personal photos culled from a Facebook photo album. Even if not used directly as evidence, social media data can be useful for confirming other information in a case during depositions.
How social media profiles are handled during litigation may also impact a case. For example, in Gatto v. United Air Lines, Inc., the court imposed spoliation sanctions against the plaintiff for deleting Facebook photo albums that could have been relevant during litigation.
Clients aren’t the only ones whose social media profiles put them at risk. Attorneys, judges and court staff are also subject to complications if they post data that’s inappropriate to a case or to their profession.
Litigation and Social Media
The increasing popularity of social media eDiscovery is leading to an ever-growing body of case law related to the admittance of social media evidence. Legal precedent suggests that relevance is essential when it comes to the admissibility of social media evidence.
In an effort to define what, exactly, constitutes the assurance of such relevance, judges are turning toward new stipulations that are designed to enforce the authenticity of social media evidence. Even with guidelines in place, many judges remain hesitant to admit social media evidence of any kind during a case, particularly since digital media is so vulnerable to manipulation through programs such as Photoshop and other means.
One way to ensure authenticity of social media evidence is to start the process early on. Through depositions taken during discovery, posts can be substantiated by the author or by online witnesses. Other pertinent data can also be obtained, such as tracking IP addresses to find the device or computer responsible for the post’s origination.
The Future of eDiscovery
In an effort to both authenticate evidence and gather social media discovery as quickly and efficiently as possible, new types of software are gaining popularity among litigators. This software is designed to find evidence in social media, including posts and other data that may have been previously deleted. In many cases, the pertinent data can be pulled dating back several years by tapping directly into the social media platform database.
Predictive coding software can automate the data collection and categorization process to lower eDiscovery costs and streamline the discovery process. Using keyword-based search algorithms, relevant data from social media can be found to supplement legal cases.
Social media is changing the face of litigation, and methods of eDiscovery are also changing as a result. While there may be a virtual goldmine of evidence available in online profiles, it will be rendered unusable without the proper investigation beforehand to ensure authenticity. Taking the extra steps to make sure that the evidence presented is relevant and real is just as vital when it comes to eDiscovery and social media evidence, as it would be for any physical exhibits.
