Every day, lawyers are engaged to help individuals and companies respond to damaging web-based communications. Though engagement is a measure of final resort, issues about evidence preservation arise at the point counsel first picks up the phone. What are we to do?
I’ve endorsed different means to preserve evidence of web-based communications in practice, each meeting the essential requirements for preserving admissible and credible evidence but none perfect in all regards. I’m not going to propose a solution though. For one, I’ve confirmed through discussions with a computer forensics friend that preserving web pages is challenging and that there is no well-accepted solution. I also have unresolved questions about how well solutions that rest on electronic preservation compete with the most obvious and easy to execute solution – looking at the page, printing it and signing it.
Rather than propose solutions, I’m more able to set out requirements – the criteria that define what a good preservation solution should do.
I’ll set them out for a single and common use case: a client comes to a lawyer with a complaint about online disparagement or disclosure of private facts. Words or images of interest have been published, new words or images of interest may be published over time and the context in which those publications are presented may change over time. The evidence may be contained on web pages that are relatively flat (like a blog or a message board) or web pages with layers of navigation (where the relationship between web pages may be relevant context). Let’s simplify by excluding the publication of video from our scenario.
Here are some proposed requirements for a solution to deal with this use case that results in the effective preservation of admissible and credible evidence. The solution should:
- preserve evidence that appears to be authentic;
- preserve evidence that reasonably represents what has been published;
- capture and preserve evidence about time and about links between web pages;
- be affordable; and
- be amenable to execution by a capable administrator.
Regarding requirement number one, counsel need to be able to have a dialogue about authenticity without the help of a technical expert. Solutions that are not intuitive and that rest on technologies that are not well accepted or understood may produce evidence that can ultimately be proven to be authentic but that is too often disputed. The evidence must “appear” to be authentic.
Regarding requirement number two, web pages can be rendered in a variety of ways on screen and in print. For our use case, the ordinary objective is to preserve evidence that allows a trier of fact to draw conclusions about a web page that was likely viewed by the public through a web browser at a point in time. Printing web pages from a browser, for example, will capture the relevant text and images, but will usually significantly distort the rendition of the web page. This is a problem, because the evidence preserved can’t be too different from the best evidence.
Regarding requirement number three, time is almost always relevant and links are often relevant context. This evidence should ordinarily be captured and preserved.
Regarding requirement number four, there are factors in our use case that will make most counsel and clients very price sensitive. First, preservation will often be part of a strategy that involves monitoring and never anything more – i.e. preservation is undertaken as insurance. Second, the evidence will most often relate to a potential claim with a limited potential for damages.
Regarding requirement number five, involving either counsel or a forensic expert in day-to-day preservation is not ideal. The solution should allow for execution by a capable administrator.
I’ve posted these requirements in the true spirit of blogging. They deserve to be questioned and refined. There are also commercial tools and archiving services that exist. Are you a lawyer or law clerk with a view on requirements? Have you used tools and services that are a good match for the requirements? Are you a technologist with a view on the solution? Please share your thoughts.