As succinctly noted by The Florida Bar Association in its publication, Florida Law Journal:
“Social media is everywhere. Nearly everyone uses it. Litigants who understand social media — and its benefits and limitations — can immeasurably help their clients resolve disputes…it is inevitable that the social media accounts of at least one person involved in a dispute will have potentially relevant and discoverable information.“
The high volume of relevant social media evidence means that lawyers are under an ethical duty of competence to address and account for it in their litigation and compliance matters.
As such, there has been a growing demand for social media evidence collection software and services — especially as legal professionals discover that not all social media evidence is legally-admissible or easy to authenticate.
Simply taking screenshots will likely get your social media evidence thrown out, as it's impossible to prove the image hasn't been manipulated and it lacks sufficient metadata to prove it is genuine.
To further show why screenshot of social media profiles or posts will not suffice in court, here are five reasons why native, post-level collections are essential when preserving and seeking to produce social media evidence:
1. Defensibility and Authentication of Evidence
Many courts have rendered “smoking gun” and other key web-based evidence worthless because the proponent offered a simple printed copy of a social media webpage, and thus failed to meet evidentiary authentication requirements.
For example, in Moroccanoil v. Marc Anthony Cosmetics 57 F.Supp.3d 1203 (2014), Moroccanoil (the company) Marc Anthony submitted screenshots of a Facebook page as evidence. Since there was no way to prove that the screenshots were an exact copy of what existed on the live Facebook site, the court ruled that the Facebook content could not be entered into evidence.
In a criminal assault case, Commonwealth v. Mangel 181 A.3d 1154 (2018), the prosecution tried to introduce screenshots of Facebook chat messages as evidence. Though a detective testified she believed the chat messages came from the defendant, the court ruled that without metadata, timestamps, or other evidence to prove authorship of the messages, they could not admit the evidence.
In Edwards v. Junior State of America Foundation, No. 4:19-CV-140-SDJ, (US Dist. CT, E.D. Texas April 23, 2021), the court ruled that metadata and full context of the native files were essential to satisfy the Best Evidence Rule. The court held that screenshots were not an output that accurately reflected the substance and context of the native file, since they could not show that the messages were authentic, nor could they “be used to prove that (the Plaintiff) sent the Facebook Messages contained in the screenshots.” Failure to produce the native files prejudiced the Defendants “of the ability to substantiate or refute the authenticity of the alleged messages.”
With native post-level collection, all critical metadata is captured and preserved, in full context, and post-level hash values are generated at the point of collection. For these reasons, Pagefreezer's social media evidence collection services and tools are the gold standard for evidentiary authentication of social media and web-based evidence.
2. Organization and Advanced Text Search
When you use a native post-level capture and collection tool like WebPreserver or Social Discovery, the software automatically indexes all text and metadata of all collected social media posts, comments, and web pages at the time of collection.
This enables text and filtering across up to tens of thousands of social media posts, allowing the examiner to immediately hone in on the relevant evidence.
Screenshots on the other hand, must be processed further with Optical Character Recognition (OCR). This process can be unwieldy, expensive and not workable in large volume matters.
3. Context and Comments are Included
Comments to social media posts are often critical evidence. With screenshots, associated comments to a post are not collected, or at best are truncated and not displayed inline.
Conversely, post-level native collection of social media is ideal because it enables the collection of the social media post as a parent item with all associated metadata and comments preserved and displayed inline.
This contextual display is preserved throughout the investigation process, including through the generation of robust load files that preserve date stamps, other key metadata, and family post identification with associated comments.
4. Analytics & Analysis Support
Every litigator and eDiscovery practitioner is aware of the critical importance of analytics as a tool to support their cases. AI-driven analytics supercharges compliance investigations, data security, privacy audits, and Technology Assisted Review (TAR) of documents, emails, social media and other web-based items. AI machine learning employs mathematical models to assess enormous datasets to gain deep insights into key information. This enables the identification of discrete and hidden patterns in thousands of emails, social media posts and other electronic files to categorize and cluster documents by concepts, content, or topic.
However, it is important to understand that such a powerful capability requires the extracted text and metadata of the subject documents, emails and social media posts. So when examiners resort to screenshots, including flat file PDF image captures, this prevents the use of game-changing analytics in your case. Screenshots do not natively preserve the subject text or metadata and are useless if fed into analytics engines. This is a major disconnect with many eDiscovery practitioners who may not fully understand that by utilizing print screen, they are forfeiting their clients’ ability to utilize otherwise game-changing analytics on the social media and other web-based data they are collecting.
Bobby Malhotra, eDiscovery team co-lead at Munger Tolles highlighted this point in a webinar addressing the importance of native file collection for social media evidence:
“If you are on a matter that is going to be very data intensive in terms of collecting voluminous amounts of data from social media sites, and you are going to need to mine through that data to understand what happened and get the relevant context (with an AI engine) the only way to really do that is to collect the full text and metadata, and so, screenshots will not suffice.”
Malhotra emphasized that this is a “really critical point regarding the analytics process as a lot of people don’t think about that.”
In fact, not only will screenshots omit text and metadata, the screenshot will create a false record if introduced into the review and analytics workflow as the metadata of the screenshot itself will be completely different that the metadata of the original native object.
For these reasons, it is important under an attorney’s duty of competency related to eDiscovery technology, to understand the implications of not collecting social media and web based evidence in native format, and strongly consider utilizing best practices technology to properly collect and preserve this critical source of evidence.
5. Seamless Upload in Review Platforms (No processing needed).
Some believe that screenshots of social media and web-based evidence save time and money. Unfortunately, nothing could be further from the truth.
Screenshots generate flat images that do not enable effective text extraction, and it is impossible to cull, process, and effectively output to attorney review platforms like Relativity.
Because of these limitations, litigants must incur dramatically increased processing costs and time delays to make the data workable in an investigative or litigation workflow.
For instance, the images must be run through OCR, the various requisite metadata fields must be manually entered, and the truncated screen shots reassembled into context so they appear and read as they did in their original state, as well as other painstaking steps. All this will typically cost up to tens of thousands of dollars in additional processing fees.
Employing more automated tools like WebPreserver or Social Discovery, enables the examiner to quickly collect entire web pages and social media accounts, which can be hundreds of pages long. This comprehensive and thorough collection allows the examiner to collect far more potential evidence, preserving all relevant metadata, and having that evidence be immediately searchable and reviewable in a highly effective integrated review and analytics platform.
All this enables a very fluid and scalable workflow that dramatically reduces downstream processing and review platform upload costs.
The Importance of Native Format Web Evidence Collection Tools
As you can see, the implications of relying on flawed social media evidence collection methods (like screenshots) are profound. The stakes are high and the consequences can be hugely detrimental.
To ensure the integrity and admissibility of your social media evidence, it is crucial to adopt the proper tools and software for native-level collections. Equip your legal team with the best technology to safeguard your evidence and enhance your litigation strategy.
Additional Resources
- Collecting Online Evidence? Don’t Let Screenshots Sink Your Case
- Best Evidence Rule Requirements For Social Media Evidence
- 5 Social Media Investigation Tools That’ll Save You Time & Reduce Frustration
Editor's Note: A version of this blog post originally appeared on the X1 Social Discovery blog. It has been updated and expanded for Pagefreezer after acquiring X1 Social Discovery.
