Social Media Evidence in Court: Part I – How Do You Capture it?

September 21, 2016
Brandon S. Harter

I recently had an opportunity to speak to the Lancaster Area Paralegal Association at its Second Annual Civil Conference regarding practical tips for using of social media evidence in court.

One of the issues I was asked to address was the practical question of ‘how do you capture’ social media evidence. Social media evidence can be collected in one of two ways. First, the data can be “self-collected” either by the client or by the law firm. Examples of this type of collection would include taking screen shots of the relevant social media. Screenshots, however, often omit other relevant portions of that user’s social media page, resulting in the loss of potentially valuable information or making it more difficult to authenticate (more on that in the next article, Part II – How Do You Authenticate It). A better self-collection technique is to download or archive an entire account. For example, Facebook provides an option on the user settings page to download that user’s entire account. Self-collection generally works best when attempting to capture social media from your own client or a cooperative witness.

What if you are collecting evidence from an opposing party’s account? In that instance, looking to the second type of collection, what I refer to as “assisted collection,” may be beneficial. This can include a full forensic examination of relevant devices. In most circumstances, however, a full forensic examination is overkill in terms of time and cost. A more cost-effective alternative is to use third-party tools or partners to gather the relevant information. These can include cloud based programs, like the third-party application NextPoint, or desktop based programs. In my own practice, I refer cases to Gathering Mist eDiscovery Solutions, a small business I started specifically to help area law firms with non-forensic assisted collections electronically stored information.

In many instances, getting useful information from an opposing party may require a multi-step process using discovery requests. One great example is the 2011 decision in Zimmerman v. Weis Markets. In Zimmerman, defense counsel sought the plaintiff’s social media user names and passwords through a Motion to Compel. To support its Motion, defense counsel utilized certain images collected from the publicly available portion of the plaintiff’s account that were inconsistent with the plaintiff’s testimony about the impact of his injuries. The court agreed and granted the Motion to Compel. With user names and passwords in hand, defense counsel would have then been able to use self-collection or an assisted collection method to grab all available information from the plaintiff’s accounts.

To learn more about using social media evidence in court, stay tuned for Part II – How Do You Authenticate it and Part III – Ethical Pitfalls here at the Lancaster Law Blog.

Brandon Harter is an attorney and technology guru at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from William & Mary Law School and advises clients on issues of Business Law, Civil Litigation & Dispute Resolution, Municipal Law, and Information Technology & Internet Law.