Of a Social Media Evidence Checklist and Prepping for Lawmageddon

When it comes to technology, are we not always hearing about the breakneck speed of change? The inexorable pace and ubiquity of it? How technology is revolutionizing law and practice? Our magazines, CLEs and law bloggings are replete with calls to brace for one type of Lawmageddon or another—the imminent (or at least happening really, really, probably, rather soon) confluence of events that will change lawyers’ lives forever. Anything short of fully encrypted communication between lawyer and client will spell negligence. You will become or be devoured by an alternative business structure. Cybersecurity will become the mantra by which you practice lest agents of the state weaponize hard drives to upend your IT system. IBM’s Watson robots will seek and destroy your retainers until all clients are theirs. You will bunkerize your practice, virtualize your office, specialize in Bit-Coin Escrow law and fight the drone armies of the future from the paperless cloud.

What? You’re not a Lawmageddon prepper? Then you might agree that the pace of change actually feels fairly plodding sometimes. That’s what I’m seeing as I dust off and update my precedents and old slides on social media evidence for a webinar I’m rebooting this June. Despite my sense that social media authenticity and production should be a vibrant budding limb on the tree of law, surprisingly little appears to be happening in Canadian jurisprudence. Very interesting cases like R v Nde Soh, 2014 NBQB 20, which deals with the distinction of “real” versus “documentary” electronic evidence under the Canada Evidence Act, or Fric v. Gershman, 2012 BCSC 614, which is a nice summation of some principles for BC, are not mentioned in recent cases.

The folks I talk to (bench and bar) seem to shore up my theory that very few feel that preoccupied with the formalities of adducing social media evidence. Some firms and agencies harness special tools like X1 Social Discovery (or perhaps WebPreserver) to snag evidence-quality data, but are judges really losing sleep when no metadata is produced and counsel is otherwise passive? For a great run down of why we could (if we wanted to) be more observant of preserving, harvesting and authenticating social media evidence, there’s Sharon D. Nelson and John W. Simek’s recent piece.

As cited in that piece, US Federal District Court Judge Paul Grimm says “It is a near certainty that the public appetite for use of social media sites is unlikely to abate, and it is essential for courts and lawyers to do a better job in offering and admitting this evidence.” But how many of us are waiting for the water to ruin our picnic before we stop ignoring signs that the tide has in fact come in? It’s food for thought. What will the fraudulent social media evidence or goof-up look like that finally turns heads?

And on that note, here is a social media evidence checklist with basic steps and strategies for helping litigants and litigators to avoid goof ups, courtesy of the folks at Ellwood Evidence Inc. (excerpt reproduced with permission):

• Research and evaluate what information is available online. Use different search engines (Google, Bing, Topsy, Yahoo, Baidu, Yandex etc.) to find information on or in:
  • Web sites
  • Profile Pages
  • Blogs
  • Chat sites
  • Posts
  • Comments
• Narrow down the important sites. Consider popular ones (e.g. Twitter, Facebook), and ones with a specific ethnic, cultural or interest-based focus (Sina Weibo, LinkedIn, Flickr).
• Determine whether the identified information is relevant.
• Determine who owns the information.
• Determine if there is private information to which authorized access may be needed.
• Determine what type of data you need to capture to make your client’s case:
  • internal and external links
  • photos and videos
  • text
  • embedded content
  • other user-created content
  • metadata
• Determine legal or ethical issues in accessing the data, including:
  • privacy legislation
  • duties of confidentiality and privilege
  • terms of service
  • Rules of Professional Conduct
• Ask your client about their online and social media engagement.
• Warn clients and witnesses of risks of social media. Consider advising them to
  • stop posting
  • change settings to private
  • avoid deleting content
• Plan to collect the information. Keep in mind the need:
  • to collect a broad range of contextual data;
  • to collect metadata;
  • to authenticate the data (through discovery testimony, distinctive characteristics of the data, forensic investigation, third party summons to a social networking site);
  • to preserve chain of possession;
  • the need to put in place a proper data hold.
• Identify the best method to collect, analyze and preserve information, for cost effectiveness and process defensibility.
• Seek co-operation of opposing counsel to facilitate data collection and holding, and limit scope and costs of production. Ask for access to private data. Consider issuing a legal hold letter.
• Prepare discovery questions about online and social media data, distinguishing between public and private information.
• Determine whether anyone has changed privacy settings during or just before the litigation. Be alive to potential for spoliation.
• Monitor social media throughout the litigation, in case new relevant data is posted.
• Be mindful of these known issues:
  • Social media operators may not respond to civil subpoenas;
  • Social media content may is not all created by the account owner, but by others the user is connected to in some way;
  • Just because a social media account has been deleted or suspended does not mean the content has disappeared from the Web or is unavailable;
  • Social media sites are constantly changing. Even minutes after collected, data might not remain available online for verification. There are courtroom-defensible forensic techniques that allow one to say the data presented was accurate at the time it was collected. Other collection strategies – e.g. printing screen images – leave the evidence open to challenge.