Social media has changed the way we share ideas, the way we get our news, the way we make purchases, and the way we conceptualize ourselves and our community. It has changed the way we keep in touch with our friends and family and the way we do business.
It shouldn't come as a surprise then, that it has also changed how we practice law.
How Social Media Has Changed Legal Practice
Or has it?
There’s no question that the digital age has altered the way that law is practiced in courtrooms across the country. From issues of jury selection and evidence collection, to issues of intellectual property, social media has changed the legal landscape forever.
Even so, while social media has revolutionized the practice of law in theory, in reality, some attorneys have been behind the curve in modernizing their practice methods to keep pace with the digital world.
eDiscovery: The Digital Difference
Humans are creatures of habit. Once we’re comfortable doing things a certain way, we’re usually reluctant to change.
While this is also true for many facets of legal practice, it seems particularly true in the realm of discovery and evidence collection. While it is understandable that keeping up with latest digital trends and technologies can be overwhelming, not being familiar with recent developments in mass adopted social media platforms or enterprise collaboration platforms has the potential to be dangerous – to your cases, your clients, and even to your reputation as an effective, experienced attorney.
Social media is an entirely different creature than more traditional forms of evidence. Unlike more tangible evidence, digital evidence from social media sources is constantly changing. Platforms evolve. Content is fluid. Posts are public one moment, and deleted or edited the next. There is simply no guarantee that the content you see today will be there tomorrow.
Failing to recognize the ephemeral nature of social media and to adjust your evidence collection practices accordingly, is a mistake.
This mistake is dangerous not only because you might lose valuable evidence – but also because it could present spoliation concerns that serve as grounds for courts to issue sanctions against you.
And it happens more often than you think.
The Duty of Preservation and the Danger of Deletion
Social media, by its very nature, lends itself to oversharing.
Most people have reached the point where they are very comfortable logging on daily, and posting whatever thoughts and feelings they are experiencing in a given moment. Photos, videos, comments, status updates – all of these posts can be a window into the lives of others that we're invited to peer into, anytime.
However, most people have also made a post that they soon came to regret. Most of the time, the regretted post is just something awkward or embarrassing, and relatively harmless – but not always.
Sometimes, the post is incriminating.
It could be evidence that disproves an alibi. It could be evidence that proves insurance fraud, like a picture of a claimant with an “injured” arm doing deadlifts at the gym. It could be anything – but if it’s incriminating, there’s a significant chance that the person who made the post may come to regret it. Even if they don’t, it’s possible their attorney could instruct them to delete the content before it’s captured by investigators.
There is always a risk of valuable evidence “disappearing,” but due to the nature of online evidence, the risk is even higher.
Prior to the digital age, most attorneys would understand that intentionally shredding documents that might be relevant to a threatened or pending lawsuit would likely be considered spoliation of evidence, and a sanctionable action. Oddly enough, however, many attorneys view digital evidence as if it belongs in a different realm, governed by a different set of rules. This is simply not so.
As most attorneys know, the law requires the preservation of any evidence that one could reasonably anticipate would be relevant to the litigation at issue. This truth leads to other questions: What is the extent of the obligation that counsel has to preserve evidence – and what happens when that obligation is not met?
The dangers of deletion are many, and the consequences can be significant.
Real Life Cases: Social Media Spoliation and Sanctions
Allied Concrete v. Lester (2013)
“Facebook Spoliation Costs Widower and His Attorney 700K in Sanctions” accurately
sums up the somewhat stunning outcome of Allied Concrete v. Lester (2013). During the wrongful death suit, Lester and his attorney determined that some of the information on Lester’s Facebook page was harmful to his character. Fearing it could be used to discredit his client, his attorney told him to “clean up” his Facebook and MySpace accounts by deleting insensitive photos in an effort to avoid those photos being used at trial.
Lester deleted the accounts, and his attorney signed discovery responses denying the existence of the accounts. The court later found that “the extensive pattern of deceptive and obstructionist conduct” of Lester and his attorney warranted the significant sanctions, which it found were “necessary and appropriate” to address
and defend against such conduct.
Victor Stanley, Inc. v. Creative Pipe, Inc
In another case, Victor Stanley, Inc. v. Creative Pipe, Inc., several sanctions were imposed due to the defendants' extensive spoliation of electronically stored information (ESI).
The court granted the plaintiff a partial default judgment on the copyright claim due to the defendants' willful destruction of evidence. The defendants were held in civil contempt for their failure to comply with discovery obligations and court orders and the defendants were ordered to pay the plaintiff's attorney fees and costs associated with the spoliation — $337,796.36.
Initially, U.S. Magistrate Judge Paul Grimm also ordered the individual defendant to be imprisoned for up to two years unless he paid the attorneys' fees and costs. However, this imprisonment sanction was later removed on appeal by the District Court, which deemed it inappropriate for potential future non-compliance.
Residential Funding Corp. v. Degeorge Financial
In Residential Funding Corp. v. Degeorge Financial, the court remanded a case after entry of a $96.4 million jury verdict, when the court found that the prevailing party had delayed (not even destroyed) the production of electronic data.
The Second Circuit remanded the case for a renewed hearing on discovery sanctions, indicating that the district court had applied an incorrect standard by not considering ordinary negligence as sufficient for imposing sanctions.
Upon reconsideration, the district court found that Residential Funding Corp. had acted negligently in its discovery obligations, particularly regarding the production of emails.
The court noted that the company had encountered repeated technical difficulties, failed to meet court-ordered deadlines, and provided misleading explanations about the availability and status of ESI. Additionally, the district court recognized that these failures significantly prejudiced DeGeorge Financial's ability to present its case.
Ultimately, the district court imposed sanctions, which included granting DeGeorge an adverse inference instruction. This instruction allowed the jury to infer that the missing emails would have been unfavorable to Residential Funding Corp.
Katiroll Company, Inc. v. Kati Roll and Platters, Inc.
In yet another case, Katiroll Company, Inc. v. Kati Roll and Platters, Inc., No. 10-3620 (GEB) (D.N.J. Aug. 3, 2011), the court determined that the defendant committed technical spoliation when he changed his Facebook profile picture, where the picture at issue was alleged to show infringing trade dress.
The court ordered the defendant to temporarily re-post the infringing photo to allow the plaintiff to print copies, rather than imposing sanctions.
In so holding, the court found that because the defendant had “control” over his Facebook page, he had the duty to preserve the photos.
The court also found that the defendants had made changes to their website which removed infringing content. This was considered spoliation since the changes were made without preserving the original content that was subject to the litigation.
The State of Social Media Evidence Today
All of the aforementioned cases involved social media evidence, that played (or could have) played a key role in the case, were it not for the fact that the evidence was either intentionally deleted, not preserved in a proper or timely manner, or both.
In most, there were significant penalties applied as a result of the failure to preserve.
The law is clear that attorneys bringing or defending claims in litigation must appropriately supervise the preservation of evidence. Exposure to sanctions or tort claims for the loss of relevant data, documents or physical evidence can be substantial.
The question is, how will you ensure that you’ve preserved the required evidence before it disappears, and do so in a format that can be readily authenticated as the law requires?
Steer Clear of Screenshots
Despite understanding what’s a stake where social media evidence is concerned, a surprising number of attorneys still believe screenshots are a sufficient manner of preserving digital evidence.
You may have heard that screenshots are “quick, easy, and free.”
These are common misconceptions – and dangerous ones.
Screenshots are, quite simply, insufficient, ineffective, and risky.
First, screenshots are often the opposite of “quick and easy” when social media is involved, simply because of the nature of the content. To capture an entire social media profile, one would need to print all profile sections, and capture all posts, and comments, including scrolling, expandable, and archived content. This can actually be incredibly time consuming, not to mention the fact that it’s easy to miss something.
Screenshots also lack authenticity and authority. It’s hard to prove when you took them, or to disprove an assertion that you altered them. It’s hard to prove that they are what you claim them to be and they’re often incomplete, not to mention they’re difficult to organize.
Why take that chance on your client’s case, and on your reputation? Is it worth the risk?
Avoiding Sanctions & Spoliation of Social Media Evidence
The truth of the matter is this - you can’t live in a new digital age while clinging to antiquated data collection practices. As technology continues to evolve, lawyers must evolve with it in order to continue to be able to effectively operate in their industry.
It is clear that failing to collect and preserve valuable evidence in a timely manner isn’t just a failure to keep pace with the digital world – in many instances, as the aforementioned cases and many others prove – it’s also a sanctionable offence.
As an attorney with a duty to preserve and collect the evidence, you need to be able to collect evidence quickly and effectively - before it is deleted or hidden forever. That's why having the right social media and web evidence capture software is crucial.
When choosing social media and web evidence capture software, here are important features to look out for:
- Automatic expansion and capture all comments and reactions, and automated scrolling capture so you don't miss anything.
- Capture in native formatting with all associated content, emojis, images, videos, comments, and reactions so evidence and be reviewed in full context.
- Digital signatures and hash values so the evidence can be authenticated.
- Export options that allow you to share evidence in full context with in-text search capabilities.
- Automated digital media collection and storage so you can capture and produce all associated images and videos in their original quality.
- User-friendly capture processes and case file organization to streamline your discovery workflow.
