Social Media Litigation Is on the Rise
August 6, 2015
When you think about social media and litigation, it might seem it would only come up during a civil, domestic, criminal mischief, or even a thievery suit. Businesses, however, rely on social media outlets like Facebook, Twitter, and Instagram to advertise their services, connect with their clients, and increase their Web presence. It turns out that social media is also playing a bigger role not only for social cases, but for business ones as well. The X1 eDiscovery Law and Tech Blog posted about the “Gibson Dunn Report: Number of Cases Involving Social Media Evidence ‘Skyrocket’” and how social media litigation has increased in the first half of 2015.
The biggest issue the post discusses is the authenticity of the social media evidence. A person printing out a social media page or summarizing the content for court does not qualify as sufficient evidence. The big question right now is how to guarantee that social media passes an authenticity test and can withstand the court proceedings.
This is where eDiscovery software comes into play:
“These cases cited by Gibson Dunn illustrate why best practices software is needed to properly collect and preserve social media evidence. Ideally, a proponent of the evidence can rely on uncontroverted direct testimony from the creator of the web page in question. In many cases, such as in the Vayner case where incriminating social media evidence is at issue, that option is not available. In such situations, the testimony of the examiner who preserved the social media or other Internet evidence “in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a finding” that the website documents are what the proponent asserts.”
The post then goes into a spiel about how the X1 Social Discovery software can make social media display all the “circumstantial indicia” or “additional confirming circumstances,” for solid evidence in court. What authenticates social media is the metadata and a MD5 checksum aka “hash value.” What really makes the information sink in is that Facebook apparently has every twenty unique metadata fields, which require eDiscovery software to determine authorship and the like. It is key to know that everything leaves a data trail on the Internet, but the average Google search is not going to dig it up.