by John Patzakis
X1 Social Discovery had a key mention in a US Federal Court decision published last week. Edwards v. Junior State of America Foundation, No. 4:19-CV-140-SDJ, (US Dist. CT, E.D. Texas April 23, 2021), is a civil litigation matter involving the intentional destruction (spoliation) of social media evidence. The plaintiff had deleted his Facebook account resulting in lost evidence critical to the case. The court cited an affidavit submitted by an eDiscovery expert witness who noted that when X1 Social Discovery was used to collect from the Plaintiff’s Facebook account, key evidence that existed prior to the litigation was missing because it had been deleted by the Plaintiff prior to the X1 Social Discovery collection.
As a result of the spoliation established in large part by the X1 Social Discovery examination, the Court imposed severe evidentiary sanctions on the plaintiff, including the exclusion of evidence and claims related to the destroyed Facebook data, and adverse jury instructions. This case once again illustrates the critical importance of social media evidence and the need to both properly preserve key social media evidence in not only a comprehensive manner, but also as soon as possible when actual or constructive notice of the litigation arises.
As we have documented extensively on this blog, the outcome of numerous cases have been determined by the improper destruction of social media evidence. Jury awards in civil cases have been overturned, criminal convictions have been thrown out and attorneys disbarred because social media evidence was not properly preserved utilizing best practices.
In fact, in another case decided last week, an Oregon trial court in a criminal matter had excluded key Facebook evidence because the prosecution failed to properly authenticate the Facebook evidence. In State of Oregon v. Acosta, 311 Or.App. 136 (May 5, 2021), the prosecution offered no forensics or technical evidence to establish an evidentiary foundation for the offered social media evidence, and instead relied upon screenshots and witness testimony. After the trial court excluded the prosecution’s social media evidence on the grounds of insufficient authentication, the case was brought up on appeal and the appellate court ended up reversing in a very close call, finding that the offered non-forensic witness testimony offered was sufficient. However, in many other cases the proponent of the social media evidence using mere screenshots have not been as successful, and this whole appeal could have been avoided by the government if they had used best practices. In fact, when X1 Social Discovery is used to collect and authenticate social media and other web-based data, the evidence is not only properly authenticated, but costly protracted court proceedings and appeals such as in the two cases above is avoided. When X1 Social Discovery is used, our customers report that it encourages evidentiary stipulations for the admission of the collected data under Federal Rule of Evidence 902(14) or similar state rules.