Tag Archives: evidentiary

July 31, 2013 · 12:46 PM

Judge Grimm’s Important Guidance on Social Media Evidence Authentication

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District Judge Paul W. Grimm

Recently, Federal District Court Judge Paul Grimm and two of his law clerks published an excellent and comprehensive legal article: “Authentication of Social Media Evidence,” American Journal of Trial Advocacy, 36 Am. J. Trial Advoc. 433 (2013). Judge Grimm is widely seen as the one of the most influential judges concerning electronic discovery issues. He is known for several ground breaking decisions in the field including Lorraine v. Markel (2007), and Victor Stanley, Inc. v. Creative Pipe Inc. (2008). Earlier this week, The American Lawyer profiled him as one of the top 5 judges at the forefront of eDiscovery.

Given his prominence and celebrity status in the eDiscovery community, Judge Grimm’s thorough analysis and guidance on social media evidentiary authentication is an important development for social media evidence discovery. Judge Grimm succinctly summarizes his article as follows:

“Given the ubiquitous use of digital devices to communicate on social media sites, there is little chance that such evidence will cease to be highly relevant in either criminal or civil cases…Hopefully, this Article can shed some light on the nature of the confusion and offer useful suggestions on how to approach the authentication of social media evidence. It is a near certainty that the public appetite for use of social media sites is unlikely to abate, and it is essential for courts and lawyers to do a better job in offering and admitting this evidence. We hope that reading this Article will be their first step toward this goal.”

More than just a first step as a resource for courts and lawyers, I would expect judges to consider this material solid persuasive authority in deciding cases involving social media and other Internet evidence. The 29-page article is available to subscribers to LexisNexis and Westlaw, but non-subscribers can purchase the article here for $15.

Highlights of Judge Grimm’s piece include a “checklist for authentication” and a thorough discussion of the perils of relying on mere screen printouts of social media and other Internet evidence, documenting the many cases where such printouts were disallowed or otherwise subject to serious challenges by the courts. Additionally, Judge Grimm highlights Federal Rule of Evidence 901(b)(4), (authenticating evidence through internal patterns and other “distinctive characteristics”) noting that it is “one of the most successful methods used to authenticate all evidence, including social media evidence.” Judge Grimm advises the collection of “all of the circumstances and characteristics that apply to the social media exhibit that add up to a showing that, more likely than not, it was authored by the person that you contend authored it.”

We published a whitepaper on this important topic (download it here) of authenticating social media evidence, with an emphasis on Rule 901(b)(4). The bottom line is that absent uncontroverted and cooperative witness testimony, lawyers must turn to circumstantial evidence to help establish an evidentiary foundation for social media evidence. Metadata is particularly important as a “distinctive characteristic” under Rule 901(b)(4), as social media items contain a wealth of key metadata that represent or can establish “internal patterns or other distinctive characteristics” of the social media items in question.

This is where utilizing best practices technology that 1) establishes an effective chain of custody of the collected social media; and 2) captures all available metadata without alteration is essential.

In addition to Judge Grimm’s excellent piece, the New York Law Journal, a publication of the NY State Bar, published a very useful practice guide article earlier this year: “Made for Each Other: Social Media and Litigation.” 85-FEB N.Y. St. B.J. 10 (Feb 2013). Here is a key quote: “For the litigator, social media provides a wealth of information– available at one’s fingertips that just a few years ago required hiring a personal investigator to obtain.” The article includes mentions of X1 Discovery at footnotes 38, 40 and 53. A full copy of this article is available on the New York State Bar website here.

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Filed under Authentication, Best Practices, Case Law, Preservation & Collection, Social Media Investigations, Social Media Metadata

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January 24, 2013 · 1:36 PM

Social Media Geolocation Provides Critical Evidence – Including Admissible Hearsay

Nearly all new mobile devices not only feature geo-location but set its activation by default. Many of the most popular mobile apps are built around the premise of geo-location to help you navigate the streets, find new restaurants and other points of interest, and even find your friends, so more and more mobile users are enabling this function. As such, a significant number of social media posts made from a mobile device have geo-location coordinate metadata associated with them. The evidentiary value of such information cannot be understated.

For court purposes, the content of such Tweets may be admissible hearsay themselves even if the actual identity of the author of a Tweet is never ascertained.  Under Rule 803(3) of the Federal Rules of Evidence, “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition . . . but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will” is not excluded by the hearsay rule. Rule 803(3) arguably describes the vast majority of Tweets, especially those from the likes of Paris Hilton or Charlie Sheen.

And then there is the “excited utterance” exception under Rule 803(2) which provides that, “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is not excluded by the hearsay rule. So, a Tweet stating “Oh my gosh, a big SUV just ran a light and nailed that Prius!!!!” would arguably fall under Rule 803(2).

To enable our user base to leverage this key evidence, this week we are announcing a major enhancement to X1 Social Discovery software that we believe significantly advances the ball for social media investigations. X1 Social Discovery will now be able to map a given location such as a city block or even a full metropolitan area, and search the entire public Twitter feed to identify any geo-located tweets that have been made in the past three days (sometimes longer) within that designated area, as well as to capture any new tweets within that area going forward. This capability is extremely useful for law enforcement, corporate security and civil litigators.

Below is an example of a geo-located area with X1 Social Discovery, with the highlighted, captured Tweet suggesting that the author could be a key witness to a traffic accident:

accident4

From there, an investigator can silently follow identified persons of interest in furtherance and highly efficient investigation. For law enforcement, this is obviously useful to gather facts and identify potential witnesses for various crime scenes. This feature can also be employed proactively, to map an area around a school, an embassy, an oil drilling facility overseas, or other critical infrastructure assets to collect and store any geo-located tweets in real time. But in order to take full advantage of this ability to gather key evidence, you need to own the software at the time of the incident.

This upgrade is part of our continuing innovation for X1 Social Discovery. We strongly believe that we have the top social media investigation tool on the market and this new feature only solidifies this position.

> To learn more, contact us for a demo or come visit us next week at Legal Tech New York, where we will be in booth #2012.

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