Mitigating Chain of Custody Risks with Digital Evidence

If you’re an attorney, a paralegal, an investigator, a law enforcement officer, or even if you just watch a lot of legal dramas on television, you’re likely familiar with the term “chain of custody”. Essentially, maintaining a “chain of custody” means validating how evidence has been gathered, tracked, and preserved prior to being entered into a case. In both civil and criminal litigation, maintaining a clear chain of custody is critical to the admission of key evidence.

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.

People May Lie .....

“Chain of custody”. Most people, and certainly those who are attorneys, law enforcement officers, or investigators, are likely familiar with this term and its importance to effectively trying and proving cases, both civil and criminal – though it is not only applicable to the practice of law, but to many other aspects of our lives as well.

Recent reports show over one billion people were on Facebook on one day. One billion people! Most were there to catch up with friends, see some trending content, or just to waste some time. With a crowd that large, you know there are a fair bit of nefarious activities going on.

81% of lawyers using evidence from Social Networking platforms. A recent study from PEW found that 66% of divorce cases used Facebook content as a primary case of evidence - this is an alarmingly high figure for lawyers not well versed in managing social media content, but also unsurprising given the ways in which we use social media in our everyday lives. This is not just limited to divorce cases, as the American Academy of Matrimonial Lawyers report that 81% if lawyers find court-worthy evidence from social networking platforms - aiding cases all across the Family Law spectrum from divorce, custody, alimony and more.

Protecting Student Data on Social Media and the Web With advances in technology and online activity, both for recreational and educational purposes, concerns have been long growing for the safety and use of children and student’s data collected in the use of certain apps and websites. Not only is this concern regarding the collection and use of children’s data, but the onus on those liable for protecting, and maintaining a balancing act between the benefits of technology for educational purposes.

Lester v. Allied Concrete [2014] In this rare instance, Virginia State fined an attorney $522,000 in Spoliation sanctions for advising his client to “clean up” his Facebook account during litigation proceedings; deeming it to be the largest eDiscovery spoliation sanction to that point. A Virginia state judge found lawyer Matthew Murray guilty of instructing his client to remove photos from his Facebook profile, and for his client to pay and additional $180,000 for compliance with this request.

Astroturfing is an illegal false advertising cyber scam, utilised by companies, organisations, politicians and individuals to boost company reputation, search results and public opinion - through unauthentic and questionable means. This online campaigning consists of fake reviews on websites and forums such as Yelp or the Apple iTunes store, lobbyists running fake blogs on behalf of clients or employers and other falsified social media accounts ensuring the manipulation of Google search results.

Nucci v. Target Corp [2015]