With over 800 million Facebook users and 200 million people with Twitter accounts, evidence from social media sites can be relevant to just about every litigation dispute and investigation matter. Social media evidence is widely discoverable and generally not subject to privacy constraints when established to be relevant to a case, particularly when that data is held by a party to litigation or even a key witness. However recent court decisions reflect that the main pressing concern for attorneys, eDiscovery practitioners and investigators is the authentication of social media data for admission into evidence in court.
We have devoted a whitepaper to this important topic (download it here) with some good feedback. 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. 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.
Metadata is particularly important as under US Federal Rule of Evidence 901(b)(4) evidence, including electronic data, can be authenticated through circumstantial evidence that reflects the “contents, substance, internal patterns, or other distinctive characteristics” of the proffered evidence. And social media items contain a wealth of key meta data that represent or can establish “internal patterns or other distinctive characteristics” of the social media items in question. I will be posting more specifics concerning social media metadata and its potential importance in court in a few days.