How to Obtain and Present Social Media Evidence
Reviewed, Edited and Approved by Kathryn Wayne-Spindler
As the world continues to adapt to 24/7 internet connectivity, an attorney’s telling of a client’s story shifts to cyberspace stories via zoom, which are told before a non-bias judge. With the way technology has taken over a client’s life, an attorney needs to affectively know the various computer devices and applications that a client’s evidence comes from to corroborate their story. By an attorney simply knowing that iPhone and android user’s emoji communications may be different as the platform is different can give them a competitive advantage. For example, a smiley face emoji may show up on an android user’s phone as a grimacing face. Furthermore, knowing what different emojis and their context means is also a highly sought-after skill as people perceive emojis differently.
How to Obtain the Evidence
The first step that should be taken is a preservation letter served to opposing counsel with explicit instructions to the client not to delete any information and not to disable ay routine, automated deletion features.
It is not uncommon to request the opposing party’s social media content during the course of discovery. The issue that comes with the practice of requesting opposing party’s social media content is that it may not be effectively obtained, reviewed, and presented. When requesting a production of documents of social media content, the attorney must have a comprehensive, non-exclusive list of the most prevalent social media sites and what is needed. Be specific when it comes to social media because there are so many social media websites that people use on a daily basis. It is also helpful to define what a “social media account” is when drafting a discovery request for social media content. By the use of specific language, opposing counsel will need to be more thorough in investigating the client’s usage of said social media account(s).
This specific language will help eliminate any discrepancies over whether or not something is a social media website, what is a messaging application, a blog, and etc. By using specific terms such as “account”, as opposed to “postings” or “content” the attorney will be more likely to capture all information that the user may be producing and receiving on all accounts. Since social media has matured throughout the years, many sites have added more and more functionality in order to keep the user on their site and make the site more beneficial to unification with other sites.
Obtaining a pre-compiled list for the production requests of social media accounts will not be beneficial if the attorney does not know what the websites offer or that the sites even exist. Visiting the websites of the more used social media websites “Frequently Asked Questions” and/or “Legal” pages will offer the attorney loads of the latest information about the websites. These pages often include a description of all the things the application can do, as well as what the application cannot do. This includes the user’s range of options to customize the account’s functionality, accessibility to others and rules for local and cloud-based data storage and retrieval.
An attorney’s understanding of the features and options will help shape the requests to the opposing party for this information. It helps for an attorney to be knowledgeable and negotiate with opposing counsel regarding the extent and format of production. An attorney should also be able to explain to the court the reasonableness of the attorney’s request if opposing counsel were to object the discovery request.
Hiring an eDiscovery Vendor for Assistance
When it comes to having significant amounts of social media discovery content, it is helpful to hire an eDiscovery vendor. These vendors must be knowledgeable and capable of both searching for and capturing any publicly available data, with respect to an opposing party. They must also capture filter and post such information that is discovered from a client so that an attorney can review and eventually provide if necessary.
There are many advantages to hiring a great eDiscovery vendor, a good vendor will have:
- Access to multiple capture tools that will gather wider range of application and site types
- Able to establish authenticity in support of admission at trial
- Can continue to host the data as needed so that the data can be searched the same as less exotic file types can in a hosted searchable database
With the rise in competition over the years, the services of an eDiscovery vendor are becoming more affordable and reasonable. Google searches are also helpful to provide a list of the current and popular social media applications.
Often the information provided is written in non-technical, consumer-oriented terms so that it can be sought after in a case. Social media websites are also giving account users more options for the storage and recovery of their own account date due to federal and state-based personal privacy regulations.
The attorneys at Kathryn Wayne-Spindler & Associates are experienced attorneys who change with the times to meet the needs of their clients. Contact the Milford, Michigan law office of Kathryn Wayne-Spindler & Associates at 248-676-1000 for assistance. The attorneys of Kathryn Wayne-Spindler & Associates practice law throughout Southeastern Michigan including Oakland, Wayne, Washtenaw, Genesee and Livingston counties as well as four mid-Michigan counties Clare, Gladwin, Ogemaw and Roscommon. The attorneys handle cases in Milford; Highland; Hartland; White Lake; Wixom; Commerce; Walled Lake; Waterford; West Bloomfield; Linden; Fenton; Flint; Grand Blanc; Holly; South Lyon; New Hudson; Howell; Clare; Gladwin; Houghton Lake; Higgins Lake; and many more Michigan communities. And soon to be opening another office in Dadeville, Alabama.
Credit to and for more information, please see article “Obtaining & Presenting Social Media Evidence During eDiscovery” by David R. Hazouri on www.familylawyermagazine.com
