A social media post can undermine an injury claim or contradict a witness’s testimony. It can also reveal details that traditional documents and interviews leave out. For legal teams, social media evidence in litigation can change how a case is understood and argued.
Finding relevant content is only the beginning. Posts can be edited or deleted before attorneys have a chance to preserve them, and using that content as evidence requires a foundation for authenticity. Understanding where to look and how to collect it helps legal teams turn potentially valuable information into evidence that supports their cases.
This article examines how social media evidence can shape litigation and what legal teams should consider when collecting it for use in court.
Why Social Media Matters in Litigation
Social media often records people’s words and activities close to the events at issue, before a legal dispute shapes how they describe what happened. A post’s timing or the surrounding conversation can give attorneys context that a later recollection lacks.
Its value also extends beyond individual posts. Comments and interactions may reveal additional witnesses or point to other records worth requesting.
Context can determine whether a post supports a claim or merely appears to. A photograph may have been uploaded long after it was taken, while a reply may refer to something outside the captured conversation. Reviewing surrounding content helps attorneys test their interpretation before relying on an isolated post.
Researching Social Media Evidence Trends in Litigation
Based on our research of U.S. state and federal court decisions from September 1, 2022, through August 31, 2023, we estimate that social media evidence featured in approximately 500,000 litigation matters during that period.
This historical estimate was extrapolated from published court decisions; it is not a count of confirmed matters or a measure of current litigation volumes.
Our search of online legal databases covered six platforms: Facebook, LinkedIn, X/Twitter, Instagram, YouTube and TikTok.
The preliminary search returned 5,623 results.
Many litigation matters never produce a published opinion. UCLA Law’s guidance on unpublished opinions explains that publication varies considerably by court, stating:
“...less than half of intermediate appellate opinions tend to be published. State trial court opinions are never published, and only a tiny fraction of federal trial (district) court opinions are published.”
If we assume our results represent 1% of all matters involving social media evidence, that produced an initial estimate of 562,300.
A sampling review indicated that approximately 10% of the results involved only passing mentions of social media or cases naming a social media company as a party. Adjusting for those results brought the rounded estimate to approximately 500,000.
The research highlights why legal teams should consider social media as a potential evidence source early in litigation. Finding relevant content is only half of the task; preserving it before it changes or disappears is equally important.
Using technology that supports best evidence collection practices, like WebPreserver Evidence Collection, can help teams collect social media content and retain the context needed for later review and authentication.
The Rise of Social Media Evidence in Litigation
In a panel discussion on social media evidence for Law Practice Today, Samantha V. Ettari (SE), an e-discovery counsel at Kramer Levin Naftalis & Frankel discussed the recent rise of social media evidence in litigation:
"Social media is a fantastic tool for discovering potential evidence for an affirmative case or defense—like any other form of evidence, social media platforms should not be overlooked as a potential source of information.
In the formal discovery process, it should be routine practice to include a request for the search and review of social media platforms in discovery requests if the underlying subject matter of the dispute provides a good-faith basis for belief that there is social media evidence relevant to the litigation."
She warns that individual privacy settings on social media accounts won't prevent those accounts or posts from being introduced as evidence:
"Many courts across the country are allowing discovery of social media, regardless of privacy settings. If you put something out there on a social media platform and it is responsive to discovery and relevant to the litigation, it will likely be ordered produced."
How Can Social Media Evidence Be Used in Litigation?
In the same panel discussion on social media evidence for Law Practice Today, Erik S. Syverson (ES), a well-known cyber liability litigator at Raines Feldman, LLP illuminates the many different ways he's personally used social media evidence in litigation:
"We use social media for any kind of information you can think of. We can use it to pick jurors on voir dire or get them excused for cause. We can use it to locate and serve difficult to find parties and witnesses. I have used it at trial to prove that someone was not where they claimed to be at the time of a tort. It won the case for us."
We've also seen many more examples, including:
- Using posts from the social media platform Strava to prove insurance fraud.
- Using self-incriminating posts in addition to video evidence to convict January 6 Capitol rioters.
- Using Reddit to help identify an obscure auto part and narrow the investigation in a hit and run.
- Using tagged photos on social media to contradict or conflict with a plaintiff's claims.
- Using bystander YouTube footage of reckless driving to prove car insurance fraud.
Obviously, the value of social media evidence depends on its connection to a disputed issue. A photograph showing physical activity, for example, may warrant further investigation without establishing the extent of someone’s injuries.
Comparing the content with other evidence helps attorneys assess what it actually demonstrates and anticipate alternative explanations.
Is Social Media Evidence Admissible in Court?
Yes, social media evidence is admissible in court. But not all social media evidence is admissible. There have been many instances where social media evidence has been denied in court, including:
- Lack of sufficient metadata to prove ownership of the social media account.
- Lack of authentication to prove the social media posts are real, not altered or photoshopped.
- Evidence submitted as screen captures or print outs, instead of authenticated evidence.
All of these instances fail under the Federal Rules of Evidence - FRE rule 901(a) — which requires that Electronically Stored Information (ESI) like social media content must be authenticated.
For social media evidence to be accepted as authentic, it must include:
- Original source code of the social media message, post, or account
- All metadata
- Digital signatures and timestamps
- EDRM-XML formatting for easy processing & analysis in eDiscovery systems
These measures also can help prove the ownership of a particular social media account by linking the metadata like IP address to the user.
All that said, introducing social media content as evidence in litigation can be complex and demands thorough authentication.
However, if you can authenticate your records, Erik S. Syverson (ES), says:
"Admissibility is the only limit on the usefulness of social media... Judges are increasingly comfortable with admitting social media evidence."
How To Collect Authenticated Social Media Evidence
Collecting social media evidence for litigation means preserving more than the words in an individual post. The surrounding context could change its meaning, while available metadata can help establish when and where the content appeared.
Documenting how the evidence was collected also helps legal teams support authentication and preserve chain of custody.
A consistent collection process should:
- Capture relevant posts with surrounding comments and account information.
- Preserve available metadata, including URLs and timestamps.
- Record who collected the content and how it was captured.
- Maintain a chain of custody through review and production.
Collection records should distinguish the date content was posted from the date it was captured. They should also note any limitations, such as unavailable comments or restricted access to part of an account.
Recording those details gives reviewers a clearer understanding of what was preserved and helps attorneys explain gaps if the collection is later questioned.
When you use WebPreserver you can easily collect social media evidence from a variety of social media sources like TikTok, Facebook, X/Twitter, Instagram, Reddit and more.
With just a few clicks, you can capture entire timelines, automatically expand and capture comments, and rest easy knowing all evidence collected will include the required metadata to prove its authenticity.
Ready to learn more? Download our social media evidence collection guide below.
