Tag: social media and litigation

The Importance of Preserving Social Media Evidence

Social media has changed the way we communicate and live. We feel the need to document our entire life, from our child’s first day of school, to details of our family vacation, and even what we ate for dinner. Most of us assume our posts are completely innocent, but nowadays social media has become an extraordinary source of evidence. Our digital footprint grows daily with every photo posted, status updated and video shared. These footprints are hard to erase.

Yesterday’s status update can easily become evidence in future litigation. This is especially true in criminal, family, personal injury and employment law. The practice of law and the ability to access information relevant to a case has been noticeably impacted by the internet. Furthermore, the rise of social media has given everyone with an internet connection the ability to receive, send, and store information in numerous formats.

So how does this storage and sharing of information on personal social media accounts can play out in a legal case?

Private Posts Are Not Always Private

Social media users utilize their privacy settings in different ways. Some people may have private Instagram and Facebook accounts but a public Twitter account. Or they may have a private Facebook account and public Instagram. Different platforms allow users to fine tune exactly what they want other followers, users, or browsers to see.

But just how much privacy do you actually have? Limiting a photograph you post to a specific audience is more private than making it public. But do you really have an expectation of privacy when you post to hundreds of “friends”, even with your privacy settings activated?

Police in Jacksonville, Florida, utilized social media in an investigation called Operation Rap Up. Numerous alleged gang members were arrested for illegally possessing weapons, which is prohibited for people with felony records in the state. The sheriff told media that at least some of the evidence had come from YouTube videos posted by the accused.

More and more, police are increasingly turning to the internet to gather evidence about suspects, and this material is being used in civil suits, ranging from divorces to personal injury claims. If you file suit claiming that an injury sidelined you from professionally playing basketball, yet later post pictures of yourself shooting hoops, as the defense argued in a recent New York case, the court will more than likely give the opposition access to your devices for more potential evidence.

There are numerous methods of capturing this evidence.

1) Print
When police, lawyers, or investigators observe something on social media in real time, they capture it immediately. There’s always a chance posts, photos, and tweets will be deleted so grab them while you have the chance. By printing the web page or social media post, you have a date and time stamp in case the evidence is deleted.

2) Screenshot
A better method of preserving social media evidence is to capture a screenshot or screen picture. Essentially, you’re using software to take a photo of what’s viewable on the display.

3) Software and tools built to preserve

While printing or saving a screenshot preserves what you see, screenshots lack the behind-the-scenes information (called metadata) that’s embedded into the webpage or post. Police, investigators, and the like can now utilize software built specifically for collecting and preserving online and social media content. These tools log the accurate visual representation of the content as well as all available metadata such as date, time, location, poster’s IP address and browser used. All content can be digitally signed and time-stamped in satisfaction of the legal requirements for submitting digital content as evidence.

As people increasingly share their lives online, the incredible amount of content will continue to grow and often be relevant to litigation. And most courts are happy to allow this evidence. Judges have been generally receptive to granting law enforcement warrants to obtain social media records to use against them for an arrest or in an existing case against them. Facebook maintains a portal for law enforcement to request evidence associated with an official investigation. Twitter has codified a detailed set of guidelines for law enforcement requesting and obtaining such evidence. YouTube, Google, and WhatsApp have done the same.

The Risks of Social Media in Litigation

Social media is obviously not going anywhere. You’ve heard the statistics: Facebook is approaching 600 million users, Twitter users post 90 million “tweets” per day, and the fastest growing demographic of social-media users are those over age 55. The impact of social media cannot be ignored. It is not just influencing how we communicate, but how lawyers litigate.

For some time there has been a lack of guidance on the discoverability and use of social-media content in civil litigation, but recently a growing number of court decisions and ethics opinions have addressed this issue.

So just how is social media used in litigation?

Social Media as Evidence

Social media is not limited to only family and criminal litigation. The usage of it in commercial, intellectual property, employment, products liability and personal-injury cases is quickly growing. Courts and litigants across the country are increasingly relying on evidence secured from social-networking sites. All sorts of evidence discoverable through social media are easy to imagine such as evidence of actual confusion in a trademark case, or evidence of reputation in a libel case.

Securing the Evidence: Public Search or Discovery Request

Often, individuals fail to restrict access to their social-media profile pages, and information about their background, location, reputation, credibility and friends is available to the general public, including an adverse party and the adverse party’s counsel. Thus, as soon as litigation seems likely, it is important to complete a thorough Internet search for information related to the opposing party, not just on Google, but directly on social-media sites.

Recently, the New York State Bar Association issued an opinion that lawyers may access another party’s social media site for potential impeachment material “as long as the party’s profile is available to all members in the network and the lawyer neither ‘friends’ the other party nor directs someone else to do so.” N.Y. State Bar Assoc., Ethics Opinion 843 (Sept. 10. 2010).

If an opposing party’s social media page is not available to the general public, the most efficient way to secure evidence on it is through discovery requests. Investigators can request identification of “any screen names or other identities used on computer sites or for social networking” and document requests might ask for social-media postings and messages related to the claims and damages in the lawsuit.

In 2010, a New York state court ordered a personal-injury plaintiff to provide a consent and authorization so Facebook and MySpace could turn over access to her entire Facebook and MySpace pages, even though she used strict privacy settings. Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010). In the lawsuit, the plaintiff alleged back and neck problems. But defendants noticed that her publicly available pages painted a different picture. The court noted that the plaintiff’s “private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence.” Citing Facebook’s and MySpace’s own policies, which warn users that they should have no expectation of privacy, the court noted that “when plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings.”

E-Discovery: Playing Defense

The face of discovery was changed forever when email was born: appropriately named “e-discovery.” And it is predicted that social media will soon replace e-mail as the primary vehicle for interpersonal communications for 20% of business users.

Litigators need to be ready, not just to make the most of social media but also to protect their clients against claims. Social media will no doubt impact preservation, collection, review and production efforts so parties should consider early on whether relevant information may be found on a social media site, and if so, whether or not they are required to or wish to preserve and/or collect such information.

What Can Lawyers Do?

It has become apparent that lawyers must keep informed of changes in the law, including the benefits and risks associated with relevant technology.

1.  Know What Your Client is posting on Social Media

In a 2014 case out of the Florida Court of Appeals, the daughter of the winning party posted a comment on her Facebook page about the outcome of a lawsuit and how it would pay for her European vacation. Unfortunately, the post violated the confidentiality provisions of the parties’ settlement and torpedoed the settlement. Oops! This is a good reminder to always know what your client is posting on social media.

2.  Don’t Remove, or Condone the Removal of Evidence

Social media posts, like any other type of “evidence” may be relevant to the lawsuit in which you are involved. Therefore, like any other type of evidence, counsel may not alter or destroy relevant social media posts nor can we direct or assist others in doing so.

For example, a lawyer directed his client to clean up his Facebook page, and then ultimately deactivated the client’s account before signing a discovery response that the client did not have a Facebook account. The Court levied a collective fine of $722,000 in sanctions against the lawyer and the client, and referred the attorney to the Virginia State Bar.     In addition to the spoliation dangers presented by social media, Gatto dovetails nicely with Point I, supra, and serves as an important reminder to know both what your client is posting, and what your client may be deleting.

Conclusion

It is important to remember that the essence of the legal profession is confidentiality and discretion. The take-away is simple: Rather than run into an ethics problem as a result of a social media post, tweet, hashtag, etc., think before you post.

Could your Social Media posts be used against you in court?

The short answer…yes and no.

Want to know how? Read on!


Most of us use social media to share pictures, exciting events or happenings, uplifting videos, and funny quotes. But some of us also use it as a platform for our political, religious, and social views as well as our downright brutally honest thoughts and feelings. Whether we transmit our rants to hundreds of eager listeners or in private chat threads, we should clearly understand the consequences of our actions.


“Sharing a public rant about your ex-spouse or former employer online may not seem problematic – a lot of people do that to get support and some cheering,” said Sherwin Arzani, attorney at Citywide Law Group. “However, you should remember that social media is evidence and discoverable. Depending on the situation, your opinions can either hurt and/or help your court case.”


Your social media posts can be used as evidence against you
Courts today are more than willing to admit social media content as a form of evidence both for and against you.


In a recent personal injury lawsuit, Largent v. Reed, the plaintiff claimed that a recent accident had left her with severe physical and mental pain. During the course of the trial, defendants presented the court with post-accident photos posted to her Facebook account. These photos demonstrated the plaintiff was clearly feeling well enough to engage in her daily activities such as attending the gym and enjoying life. With this information, the court ordered the plaintiff to hand over her Facebook login information for further inspection.


The lesson? Never assume that anything you share online (publicly or in private messages) is fully confidential. “If you are involved in any case or proceeding, or even a case or proceeding that is reasonably foreseeable, think twice before posting anything that can be self-incriminating or used against you in the courtroom,” said Joseph Fantini, attorney at Rosen Injury Lawyers.


Public social media posts count as legally obtained evidence
Contrary to popular belief, it is legal to use communications garnered from social media sites as evidence. Judge Michael Corriero explains that “the prohibition against using illegally obtained evidence applies primarily, essentially solely, to law enforcement. It doesn’t apply to another civilian.” If you have exchanged self-incriminating messages with someone privately, maybe through a messenger app, those would be admitted by most courts without any issue.


According to Ambrosio Rodriguez, a criminal defense attorney at The Rodriguez Law Group, the same applies to photographs, taken and published by you or someone else. “If a friend takes and publishes a controversial picture showing you drunk in public you may act against them for unfairly depicting you as drunk. But if you were actually drinking at that time, these photos will be used as evidence against you in a relevant proceeding,” he explained.

Deleting your social media content during trials is not smart
“When you are involved in a lawsuit, the rules of evidence apply to your social media content just as they do to the discoverability and admissibility of other forms of evidence,” said Ryan Van Steenis, an attorney at Ajamie LLP, in Houston, Texas. “It is not advisable to delete the content you have shared online. Depending on the circumstances, such activity can be considered serious. A court may find that a negative inference should be held against you for the destruction or spoliation of relevant evidence. This can have adverse consequences to your case, and attorneys representing clients with social media properties should advise their clients how to manage their social media content accordingly. A client is permitted to adjust their privacy settings, but do not take any further actions that the court may deem as suspicious.”


And what you think is “permanently” deleted content” can actually be recovered using new-gen forensic recovery methods. Even if your personal device is password protected, it does not mean that the authorities cannot legally get access to it. Suspects and parties undertaking a trial can be served with a disclosure notice demanding them to reveal all passwords. Failure to comply can lead to further penalties. Everything you share on social media can become part of the public record – whether you want it or not.


So how can you stay safe?
Be a selective sharer. Always stay on the safe side and don’t share anything that you would not otherwise tell freely in public.
Consider using one of the best VPN services available. This helps keep your online activities protected against snooping, interference and censorship, according to TechNadu.
Be careful where you click. Risky apps and dangerous links sent via social media can give hackers access to spy on you, according to CBS News. Also, don’t respond to messages from strangers.