Social media has become a treasure trove for legal evidence, providing insights into to people's lives and behaviors, that can significantly impact investigations and litigation. Users are driven by algorithms to post engaging, often provocative content, leading to a wealth of incriminating evidence. 

The Role of Algorithms in Social Media Engagement

In a webinar sponsored by USC Center for the Political Future, we discussed the legal and regulatory developments impacting social media platforms. In the dynamics of social media and politics, we shared some important insights on the proliferation of social media eDiscovery. 

Psychological Drivers Behind Social Media Posts

Fellow Panelist Morteza Dehghani, an Associate Professor of Psychology at USC (who also has a computer science background,) offered compelling analysis into the psychology motivating social media users seeking to have an impact with their content.

She pointed out that there is a mental reward of sorts when your Facebook post or Tweet gets hundreds of likes or retweets. It provides that instant gratification of engagement that you simply don’t experience with more private digital communication methods like email.

And the more engagement your post receives, the more the algorithms introduce and prioritize it in other people’s feeds. This leads people to make more provocative statements, not only relating to politics, but on any topic.

Often, interesting and engaging social media posts are also interesting to lawyers if that social media user happens to be involved in litigation.

Social Media Evidence in Criminal Cases

According to the Global Network of Extremism and Technology, who are tracking the criminal prosecutions from the January 6 Capital riots, 82% of the filed criminal indictments contained some type of evidence from social media, with 52% of the complaints presenting the individual’s own social media posts as evidence against them and an additional 30% presenting others’ social media content to identify and charge the defendants.

We've written extensively about social media evidence in litigation:

• The Power & Pitfalls of Social Media Evidence in Trademark Infringement Cases
• 4 High-Profile Cases Solved by Social Media
• 5 Reasons Why Native Format Collection is Essential for Social Media Evidence
• Best Evidence Rule Requirements For Social Media Evidence
• 7 Times Social Media Evidence Was Denied in Court
• Social Media Evidence Spoliation and Preservation
• Collecting Online Evidence? Don’t Let Screenshots Sink Your Case

Implications for Civil and Regulatory Matters

The same dynamic also applies to civil and regulatory matters.

Somebody who may been involved in an accident claiming injury may seek sometime later to spur engagement with their Facebook network by posting about their surfing escapades in Hawaii.

An expert witness, to draw attention and publicity, may make controversial statements on Twitter related to research in their field.

Corporations that are eager to promote their brand and engage with potential customers, or executives who seek to pump their stock, may also engage in posting controversial content to boost engagement and visibility.

Banal, generic social media posts simply do not generate the level of engagement that more provocative posts do. 

Legal Ethics and Competence in Social Media Discovery

This is why social media discovery efforts can make a measurable difference in, or at least greatly assist, your clients’ case, especially if you can move quickly and proactively at the outset of the litigation to capture the social media evidence.

And this isn't lost on legal experts and the likes of the American Bar Association and State Bar Associations, who draft ethics rules governing attorneys general duty of competence.

The New Hampshire Bar Association published Opinion 2012-13/05 stating that lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.”

Embracing Social Media Discovery for Legal Success

Smart practitioners who understand this and embrace social media and website discovery are getting ahead by providing their clients a very powerful and effective service. In some cases, they are single handedly winning cases for their clients.