Category Archives: Social Media Investigations

Social Media Statements: Key Evidence and Often Exceptions to the Hearsay Rule

By John Patzakis

Here is a quick legal evidence quiz: Identify the three distinct hearsay exceptions in the following Tweet:

Accident 5

 

The first exception would be under Federal Rule of Evidence 803(2):

“Rule 803. Exceptions to the Rule Against Hearsay: . . . (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”

Pretty clear here. The four OMGs are a good indication. So no one can argue that the phrase “OMG” never has any legal consequence.

The second exception would be under FRE 803(1): “Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.”

And if the witness some time later did not recall details of the incident (two words: Vegas, hangover), the statement could be introduced as a recorded recollection under 803(5).

Another key hearsay exception are statements offered as evidence of the then state of mind of the declarant. While YouTube is known for cat videos, Twitter and Facebook are in large part a platform for statements like this:

Happy Tweet

 

In other words, to quote FRE 803(3): “Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)”

While social media is a great place to find out what Kim Kardashian and Justin Bieber are thinking or feeling on a given day, the state of mind of a party or witness is a common issue in many legal matters. (See Gordon v. T.G.R. Logistics, Inc. (D. Wy. May 10, 2017) (Court orders production of entire Facebook Account history as relevant to mental and emotional state of Plaintiff)).

And finally, arguably the most compelling social media evidence stems from the propensity to self-incriminate oneself on Twitter, otherwise known as a Statement Against Interest under FRE 804(b)(3).  This takes multiple forms, including flat out admissions of liability, or previous statements that contradict or otherwise impugn the integrity of a declarant. For instance:

Trump tweet

 

The bottom line is that social media provides a treasure trove of evidence that also tends to fall under evidentiary hearsay exceptions, unlike other forms of out of court statements.

But if you are offering social media evidence under a hearsay exception in court, that would likely mean you have an uncooperative or otherwise unavailable party who authored the social media statement in question. In such cases, the authenticity of the post must be established through circumstantial evidence since direct testimony is not available, and you will need the right software to both identify such evidence and properly collect it utilizing best practices to ensure its admissibility in court.

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Filed under Authentication, Best Practices, Case Law, Case Study, eDiscovery, Social Media Investigations

90 Percent of Law Firms Managed Social Media Evidence Collections in 2018

By John Patzakis

The International Legal Technology Association recently published a very informative and comprehensive law firm eDiscovery practice survey “2018 Litigation and Practice Support Survey.” ILTA received responses from 181 different law firms — small, medium and large — on a variety of subjects, including eDiscovery practice trends and software tool usage.  The survey reveals three key takeaways regarding social media and website discovery.

The first clear takeaway is that social media discovery is clearly increasing among law firms and in the field in general. 90 percent of responding law firms reported conducting social media discovery in 2018. Additionally, the responding firms reported a higher average volume of cases involving social media evidence, with a 46 percent increase in firms handling at least 20 matters per year involving social media evidence.

ILTA Survey v2

Source: ILTA 2018 Litigation and Practice Support Survey

In terms of identified software solution usage, the survey establishes that X1 Social Discovery is the clear leader in the web and social media capture category among purpose-built tools used by law firms. 63 percent of all surveyed law firms rely on X1 Social Discovery on either an in-sourced or outsourced basis. This is consistent with our own internal data, reflecting the industry’s standardization of social media evidence collection by the sheer volume of customers that have adopted X1 Social Discovery. Nearly 200 law firms and 400 eDiscovery services firms have at least one paid license of X1 Social Discovery.

And in addition to social media evidence collections, X1 Social Discovery registered as the most popular eDiscovery software used for webmail collection (i.e. Gmail, Yahoo, Aol, Office 365) with 32 percent of law firms relying on X1 for this purposes. X1 Social Discovery provides an extremely effective means to collect, search, tag, and export via loadfile or pst web-based email evidence.

The final takeaway is that the practice of using screen captures with general IT tools like Adobe and Snagit is still commonly employed by practitioners at law firms, but is virtually non-existent amongst service providers, who typically are on the forefront of adapting best practices. Screen capturing is neither effective nor defensible.  They are ineffective because the results are very narrow and incomplete, and the process is very labor intensive resulting in much higher costs to the client than using best practices. (See Stallings v. City of Johnston, 2014 WL 2061669 (S.D. Ill. May 19, 2014): the law firm spent a full week screen capturing contents of a Facebook account — which amounted to over 500 printed pages — manually rearranging them, and then redacting at a cost of tens of thousands of dollars).

In addition, simple screen captures are not defensible, with several courts disallowing or otherwise calling into question social media evidence presented in the form of a screen shot image. This scrutiny will only increase with Federal Rule of Evidence 902(14) now in effect. I have previously addressed Rule 902(14) at length on this blog, but in a nutshell, screen captures are not Rule 902(14) compliant, while best practices technology like X1 Social Discovery have the critical ability to collect all available metadata and generate an MD5 checksum, or “hash value,” of the preserved data for verification of the integrity of the evidence. The generation of hash values is a key component for meeting the requirements of FRE 902(14).

The ILTA Litigation Practice survey results can be accessed here. For more information about how to conduct effective social medial investigations, please contact us, or request a free demo version of X1 Social Discovery.

 

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