It turns out that sometimes you can believe what you see on the internet.
Criminal defendants and civil litigants overshare on social media just like the rest of us. But heading into court, that tendency is less an annoying habit and more a potential self-incrimination. In their search for credible evidence against opponents, lawyers are increasingly turning to social media for digital smoking guns.
When Facebook first urged its users to “Go Live!” on its new video posting system, it probably imagined videos of blown-out birthday candles or baby’s first steps. Disturbingly, the feature began to be used for posting videos bragging to the world about crimes. But self-incriminating evidence includes more than posting videos of possible crimes. For example, spouses often use internet posts against each other in divorce court. Even as early as 2010, 81 percent of divorce attorneys agreed there was an increase in social media evidence. They cited Facebook as the top source for online evidence, with 66 percent of those lawyers finding something useful for their clients on the social site.
No area of practice is immune: Bankruptcy lawyers need to worry about posts that indicate hidden assets, and personal injury attorneys should worry that their client’s Instagram posts will make the jury skeptical of claims of pain and suffering.
Three Tips for Finding the Digital Dirt
You can use social media evidence to great effect, but first, you’ve got to find it and capture it in an efficient way. Consider these three tips:
1. DIY Detective Work. When a new case comes in, you’ll need to screenshot early and often. An increasing (and dangerous) trend among litigants is to destroy online posts when it becomes clear that those posts are going to become evidence.
Spoliation of evidence is becoming an increasingly prevalent problem, as unscrupulous attorneys may advise clients to deactivate accounts, delete posts or alter privacy settings in anticipation of litigation. Bar associations are developing ethical standards around this evidence, but finding the evidence before it’s altered is still the best bet.
2. Use the Right Tools. To cast a wider and more effective electronic net, use e-discovery tools like X1 Social Discovery. Products like this can not only capture and preserve social media content, but they can also search through a wide range of publicly available online content. For example, these kinds of discovery tools can target a specific geographic area and collect all the tweets from that area within a given period of time.
3. Bring in third-party help. Even with the best e-discovery tools, you may struggle to find evidence on your own. In addition to old-fashioned legwork, private investigators can provide critical arms-length research by working through a litigant’s social media friends.
An investigator skilled in e-discovery techniques may be able to gain access to a full social media account simply by requesting access from the litigant (and litigants, surprisingly, are often careless enough to oblige), while attorneys working with only publicly available data may see redacted or limited accounts. Note, however, that this technique, while effective, is not permitted in some states, like New York.
Perhaps the most important advantage of an investigator is the ability to narrow the scope of discovery. An investigator can provide information that allows a lawyer to target interrogatories and requests for production on a specific matter. That can prevent a judge from accepting the other side’s objections about “social media fishing expeditions.”
Perry Mason, the classic television lawyer, always got a witness to confess on the stand. That doesn’t happen in the real world — but an online confession from a witness’s Facebook posts could be the next best thing. That happens in the real world every day, and with these tips, you can use that digital evidence for your own Perry Mason moment.