Our world is constantly changing, and the way attorneys litigate must change with it. With the advent of social media and the tremendous growth of the web in the last two decades, the way we connect with one another has fundamentally shifted. As a result, the practice of law has shifted too.
Social media allows users to share their lives with friends, family, and the greater world community at large. Understandably, courts have grappled with the issue of social media and website evidence, and with how such evidence can be properly authenticated and utilized in legal matters. The advent of social media, though it has revolutionized our society in many ways, has not eliminated the legal requirements to establish relevance and authenticity.
Increasingly, courts are relying upon digital information obtained from the web at large and social media accounts particularly. Courts expect such evidence to be authenticated, readily made available, and organized. Accordingly, savvy litigators are wise to consider the most effective, efficient manner in which to obtain that information. Many of those litigators have discovered, and have effectively utilized WebPreserver to achieve that goal.
WebPreserver has consistently been on the forefront of website evidence collection, and offers a strong automation solution to attorneys seeking to preserve web and social media content in a forensically defensible way. By providing forensic signatures, timestamps, and Metadata collection along with an entirely automated preservation process, WebPreserver provides counsel with solid evidence and peace of mind.
As attorneys know, for any social media evidence to be admissible, counsel will need to show not only that the person owns the account, but that they wrote the text or posted the photo or information at issue. In Griffin v. State, 19 A.3d 415, 423-24 (Md. 2011), a Maryland court found that merely identifying the date of birth and a face in a photograph on a social media website that claims to reflect the creator and author of the post was insufficient to establish authenticity. The court held that because digital information is easily susceptible to abuse and manipulation it required “greater scrutiny of ‘the foundational requirements’ than letters or other paper records, to bolster reliability.”
Subsequently, in Sublet v. State, 113 A.3d 695 (Md. 2015), the court again reiterated that, “In order to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be.”
American Bar Association, in referencing new clauses to Federal Rules of Evidence 902, sections 13 and 14, states:
"When there is no dispute as to authenticity of ESI, 902(13) and (14) should help achieve the laudable goal of reducing the expense of litigation. Rather than present live testimony of a foundation witness, the proponent establishes authenticity under 902(13) and (14) by presenting a certification containing information that would be sufficient to establish authenticity if the information were provided by testimony at a hearing or trial."
WebPreserver, in providing a fully automated preservation with detailed forensic collection reports, serving as the above certification, makes it easier for counsel to meet this standard when serving their clients.
Certainly, some attorneys use manual screenshots and a written affidavit for purposes of meeting the authentication standard. Rarely, however, is it only one Screenshot, or one page that a court considers. More often than not, hundreds of pages or posts may be required. Such methods can easily become expensive, time-consuming, and tedious, particularly in cases where a vast amount of information is found to be discoverable. Hence, another reason why sections 13 and 14 were added to FRE902.
A classic example of voluminous online Discovery was illustrated by Richards v. Hertz Corporation, 100 A.3d. 728 (N.Y. 2012). In Richards, the appellate court agreed with the defendants that contents from the plaintiff’s Facebook page were relevant. In that particular case, the defendants sought access to all status reports, emails, photographs, and videos posted on the plaintiff’s Facebook profile page since the date of the accident at issue.
In another such case, EEOC v. Original Honeybaked Ham Co. of Georgia, Inc., 918 F.Supp.2d 1171 (2013), the court again held that the defendant had adequately shown that postings discovered on the opposing party’s Facebook page contained discoverable information. Accordingly, the court ordered that the cost for the collection of what ended up being a fairly vast amount of information be split between the plaintiffs and the defendants.
In cases of this nature, countless hours of time which otherwise could be billed toward other issues important to the litigation could easily be spent instead on data collection. WebPreserver enables subscribers to avoid that needless expenditure of their time, and to save money on costs that would otherwise be incurred by endless copying, printing, and organization of a significant amount of digital content.
Valuable billable hours should be spent on litigating cases, not printing countless copies of manual screenshots and online content. The time spent on hours of printing, copying, and organizing what are sometimes hundreds of pages of manual screenshots could, with use of the right technology, be reduced to minutes. WebPreserver is the ideal solution for smart, savvy attorneys and their clients who want effective, legally admissible evidence obtained in the most efficient manner possible.