Spoliation, Sanctions, and Staying Savvy
The rise of social media has revolutionized our modern world in countless ways. It has changed the way we share ideas. It has changed the way we obtain our news, and purchase the products we want and need. It has changed the way that we keep in touch with our friends and family. It has changed the way we do business. It only stands to reason, then, that it has also changed the practice of law.
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, to evidence collection, to issues of intellectual property and more, social media has changed the legal landscape forever. Even so, some might make the argument that 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.
The Digital Difference
Humans are creatures of habit. Once we’re comfortable with a certain routine, or a certain way of doing things, we’re often reluctant to change. While this is true for a number of facets of legal practice, it seems particularly so in the realm of Discovery and evidence collection. While it is understandable, it has the potential to be dangerous – to your cases, your clients, and even to your reputation as an effective, experienced attorney.
Unlike more tangible evidence, social media is constantly changing. Platforms evolve. Content is fluid. Posts are made one moment, and then potentially deleted the next. There is simply no guarantee that the content you see today will be present in the same form tomorrow. Social media is an entirely different creature than more traditional forms of evidence. The mistake that most attorneys make is failing to recognize this, and to adjust their evidence collection practices accordingly.
This is a mistake that is dangerous not only because you might lose evidence that is valuable to your case and your client – but also because it presents Spoliation concerns that serve as grounds for courts to issue sanctions against you. This happens far more often than many attorneys might assume – Don’t let it happen to you.
The Duty of Preservation – And the Danger of Deletion
Social media, by its very nature, often lends itself to oversharing. Most people have reached a point where they are very comfortable logging into social media almost daily, and posting whatever thoughts and feelings they have about their lives at that particular moment. Photos, videos, comments, status updates – all of these things are a window into the lives of others that we are invited to peer into at any time.
Often, however, simply because human nature is what it is, people will make a post that they soon come to regret. Most of the time, the regretted post is just something awkward or embarrassing, but relatively harmless – but not always.
Sometimes, the evidence posted is incriminating. It could be evidence that disproves an alibi. Perhaps it’s a picture of a workers’ compensation 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 highly possible, even though unethical, that their attorney may instruct them to delete the content before it’s been captured.
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 some sort of 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. Among them - 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, as the following cases make clear.
Spoliation and Sanctions
“Facebook Spoliation Costs Widower and His Attorney 700K in Sanctions” accurately
sums up the somewhat stunning outcome of Allied Concrete v. Lester. In that 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.
In another case, Victor Stanley, Inc. v. Creative Pipe, Inc., the court entered an order granting in part and denying in part plaintiff’s motion for sanctions against defendant for spoliation of electronically stored evidence. In so doing, the court held that, “The common law imposes the obligation to preserve evidence from the moment that litigation is reasonably anticipated.” In Residential Funding Corp. v. Degeorge Financial, the court remanded a case after entry of a $96.4 million dollar jury verdict, when the court found that the prevailing party had delayed (not even destroyed) the production of electronic data. 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 simply changed his Facebook profile picture, where the picture at issue was alleged to show infringing trade dress. In so holding, the court found that because the defendant had “control” over his Facebook page, he had the duty to preserve the photos.
What do these cases, and many more like them, have in common? All involve 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 all, 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?
Steering Clear of Screenshots
Despite knowing what’s a stake where social media is concerned, a surprising number of attorneys still feel that taking a Screenshot of the evidence at issue is an efficient and effective manner of preserving the evidence. We’re often told that screenshots are “quick and easy” and that there is no need to pay for a capture service when the screen can just be printed for free. These are common misconceptions –and dangerous ones. Screenshots are, quite simply, insufficient, ineffective, and risky. Why take that chance on your client’s case, and on your reputation?
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. They’re often incomplete. They’re difficult to organize. They often fail to prove the point. Sometimes, they’re even grounds for sanctions. Is all of that worth the risk? We would say that it isn’t.
The same concerns apply to outsourcing your evidence collection to a third party. Identifying all of the content you might need could be difficult. Moreover, outsourcing necessarily creates a delay, which in the case of social media, can make all of the difference. While you are delaying, it’s highly likely that the content in question could be deleted. This is not to mention potential chain of custody issues, higher costs, and a lack of control over the collection process.
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 these cases and many others prove – it’s also a sanctionable offense.
At WebPreserver, we understand that technology can be daunting, particularly as it seems to be ever-evolving. While this is true, it’s a mistake to stay stuck in the past, taking screenshot after screenshot, or outsourcing to third party collection services that cost you time and money you can’t afford to waste. As an attorney with a duty to preserve and collect the evidence you need to seek justice for your client, you need to be able to collect that evidence quickly and effectively - before it is deleted or hidden forever.
With a Plug-in that you can install and use almost effortlessly, WebPreserver collects Metadata and HTML source code, and places a Digital signature and timestamp on all preservations. Our captures produce sound, reliable evidence that complies with the E-Sign Act, Federal Rules of Evidence, and other regulations.
Browse. Click. Evidence. That’s the WebPreserver promise. Call us today.