Make The Discovery: How To Gather Social Media And Online Evidence As You Prepare For Litigation

Do you know the legal issues and precedents around the collection of social media and online evidence?

If you’re not prepared with the know-how, expertise, and a solid background in the review, gathering and collection of credible data for a case involving social media evidence, you may discover that key pieces of evidence for your case are missing or inadmissible.

We know sometimes it seems like the digital landscape is shifting almost daily, and it can be hard to know where to look and how to proceed when gathering online evidence. But you can start by learning more about the legal rulings around the use and collection of digital data, and how that pertains to social media evidence.

There are definitely best practices to follow regarding social media and digital data discovery. To get started, you must first understand how social media evidence is gathered.

In general, there are three primary means to uncover information in the digital space:

  1. Use of information noted by your client, or found on informal review by your legal staff.
  2. Request of social media as part of the discovery process, or the subpoena of private (digital) records.
  3. Investigation and reporting based on available digital information, collected by an analyst with the background and expertise in online evidence.

The first two options on the above list might seem easy, but each comes with a distinct set of risks for your legal team, and for your client. For example, if you have social media or digital data information brought to you by a client about the other side, you’re still going to need to know how to document the evidence properly so that it is admissible and defensible. Screenshots and word-of-mouth are not enough.

Moreover, evidence collected by your legal staff is subject to the same requirements for proper documentation.

Requesting digital information during the discovery process, or as part of a subpoena, isn’t necessarily a better option, either. The process might not yield the results you’re looking for, as the discovery process itself notifies the opposing side to review and scrub their digital footprint, and request similar information from your client.

The third option is have an expert compile a report as part of the process to prepare. A trained, certified analyst will know where to look, and how to document the evidence properly. Use of a third party expert also removes you from any liability associated with having reviewed the social media profiles of the opposing side.

For that reason, we recommend that you make use of expert digital data analysts to compile complete reports as part of the preparation process.

What’s the takeaway? Read on for best practices to help you navigate social media and digital data laws.

Social media and online evidence policies, based on legal precedent

  • It is important for attorneys, legal aides, and all supporting professional staff to consider how they conduct themselves on social media. A misstep can permanently damage an attorney’s professional reputation, and put him or her at risk for violating litigation and trial conduct rules.
  • Attorneys MUST have all of the expertise to appropriately advise a client on social media and digital matters. That advice not only extends to preservation of privacy, but also in how to preserve evidence when appropriate.
  • Legal professionals must be ready to avoid the risk of running afoul of the laws about review and contacting the other side. Did you know that some social sites will send an automatic message about profile reviews to the account holder, and that information can (in some cases) be considered making contact with the account holder, which violates ethical rules in some jurisdictions?
  • All legal counsel must be aware that subpoenas that don’t always produce the desired digital information. Even worse, by the time your team is able to gain a subpoena it is likely that the opposing counsel will have already advised their client to delete information, lock down privacy settings, and even encrypt the information.

And this is just the proverbial tip of the iceberg. If your legal team could use more information from a trained and certified social media analyst, we invite you to reach out to the team at SMI Aware. We look forward to working with you.

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