Building Circumstantial Evidence in Social Media & Web Discovery

The significance and increasing role of social media in legal discovery cannot be understated. Whether your case involves employment law, criminal matters, personal injury, divorce proceedings or child custody disputes, you cannot ignore the wealth of information on social media and run the risk of missing crucial evidence. Moreover, you may be violating ethical rules for failing to utilize available technology competently in web discovery. If you plan to rely on screenshots as evidence, you may be left holding useless copies unless you utilize proper e-discovery preservation techniques.

Authenticating Social Media Evidence

The standard for authenticating social media evidence has been a hot topic over the last few years, and rightly so. Judges are wary of admitting social media evidence and courts have presented conflicting standards. The “Maryland approach” sets a high bar and requires sufficient evidence to prove that a social media post was not falsified or created by other users necessitating a “greater degree of authentication.” Griffin v. State, 19 A.3d 415, 424 (Md. Ct. App. 2011). Conversely, the “Texas approach” applies the same authentication standard for social media that is used for traditional documentary evidence. Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012). The courts, including Maryland, are trending toward the more lenient Texas approach.

Authentication is very case-specific, and courts generally agree that testimony from the person who printed the social media content is insufficient to establish authenticity. The Commonwealth of Pennsylvania learned this lesson the hard way.

Commonwealth v. Mangel

In the criminal assault case of Commonwealth v. Mangel, 181 A.3d 1154 (Pa. 2018), the prosecution sought to introduce screenshots of undated Facebook chat messages on the defendant’s account and called a detective, qualified as an expert in computer forensics, to testify. The detective testified that she believed the account belonged to the defendant based on her comparison of the screenshots to an account she found online containing the name, hometown, educational background, and photographs matching the defendant. She also reviewed subscriber records from Facebook and a cellular service provider; the phone number registered with the account matched the name and address of the defendant’s mother. The detective concluded the Facebook page in the screenshots “should be the same” as the one she located and that she believed the chats came from the defendant.

While the detective believed the page belonged to the defendant, there were no indicators that he was the author of the chats. The detective did not obtain login credentials, the IP address, metadata, or other forensic data. Both the trial and appellate court concluded that merely presenting evidence that the messages came from an account with the same name as the defendant was insufficient to admit the evidence.  Since there was no direct or circumstantial evidence tending to prove authorship of the messages, the judge precluded them. Even more problematic for the prosecution was the complete absence of circumstantial evidence proving ownership of the Facebook account in question. There was no verification of the originating IP address or a formal capture of the source code and metadata, which would have provided the court with time-stamped posts and images that tied the evidence to the event in question.

Why Metadata Matters

Circumstantial evidence in web discovery comes in many forms, but metadata is one critical form that can easily be obtained if you are properly preserving social media evidence. Had the prosecution in the Mengal case collected the dates and timestamps, the court would have been able to tie the content in the screenshots to the crime at issue. Preserved metadata can improve your chances of properly authenticating evidence like social media postings, photographs, and Tweets, and alleviate concerns related to alteration of electronic records. Adequately preserved metadata strengthens your argument that the evidence is what you allege. So, if you are looking to admit Facebook, Twitter, or any social media evidence, ensure that you are collecting the relevant metadata to assist in authenticating your evidence.

Ethical Considerations for Web Discovery

With the availability of web discovery options in today’s market, bypassing the step of obtaining e-discovery, or obtaining it by improper methods, is arguably a blatant violation of an attorney’s duty of technical competence. ABA Model Rule of Professional Conduct 1.1 sets forth the duty of competence and requires a lawyer to render competent representation by providing “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” This duty requires keeping up with “the benefits and risks associated with relevant technology.”

Technology changes constantly and new social media platforms are appearing at such a rapid pace that DIY e-discovery may not be enough given the circumstances of your case or your level of technical expertise. At this time, 35 states have adopted the ABA’s duty of technical competence, and many others have issued ethics opinions echoing this requirement. This duty should not be taken lightly.

In addition to Rule 1.1, other duties that may arise related to social media and e-discovery include Model Rules 1.3, 4.1, 4.2, 4.3, 5.3, and 8.4. As technology and the law evolve, so must attorneys.

Bottom Line

The use of social media as evidence will only continue to grow as people continue to publish their daily lives for all to see. To avoid causing inadvertent and unnecessary harm to your clients, and to remain ethically compliant in the web discovery process, attorneys must complete full e-discovery in all cases including social media evidence.

If you are unsure how to proceed with this process, you are not alone. Our team of experts is available to answer any questions and provide assistance as needed. Do not hesitate to reach out, and be sure to check out our other posts for more information.

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