by John Patzakis
As part of our ongoing effort to monitor legal developments concerning social media evidence, we again searched online legal databases of state and federal court decisions across the United States — this time to identify the number of cases in 2014 where evidence from social networking sites played a significant role. The initial search returned over 10,000 results. That is far too many to review manually, but through random sampling to eliminate duplicates and de minimis entries — defined as cases with merely cursory or passing mentions of social media sites — we counted over 5,500 cases accessible through Westlaw. This represents a 3x increase over 2013.
And as only a very small number of cases — approximately one percent of all filed cases — involve a published decision or brief that we can access online, it is safe to assume that hundreds of thousands more cases involved social media evidence during this time period. Additionally, many of these published decisions involve fact patterns from as far back as 2009 (that I saw), as they are now just working their way through the discovery motion/appeals process. Finally, these cases do not reflect the presumably many hundreds of thousands of more instances where social media evidence was relevant to a corporate or law enforcement investigation yet did not evolve into actual litigation. Even so, this limited survey is an important data point establishing the ubiquitous nature of social media evidence, its unequivocal and compelling importance, and the necessity of best practices technology to search and collect this data for litigation and compliance requirements.
As succinctly noted by The Florida Bar Association in its publication, Florida Law Journal, “SOCIAL MEDIA EVIDENCE: WHAT YOU CAN’T USE WON’T HELP YOU” (2014) Volume 88, No. 1:
“Social media is everywhere. Nearly everyone uses it. Litigants who understand social media–and its benefits and limitations– can immeasurably help their clients resolve disputes. If not properly researched, preserved, and authenticated, the best social media evidence is worthless.”
“Social networking sites have grown from a few thousand users to more than a billion. These sites have become a preferred form of electronic communication, surpassing email in 2009. As of March 31, 2011, 9,370,620 Floridians had registered for a Facebook account, which is approximately half of the state’s population. Based on these statistics, it is inevitable that the social media accounts of at least one person involved in a dispute will have potentially relevant and discoverable information.”
This is why several other Bar Associations have now weighed in to assert that a lawyer’s duty of competence requires addressing social media evidence. New Hampshire Bar Association published Opinion 2012-13/05 providing that lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.” The Pennsylvania Bar weighed in with a similar opinion, and the ABA recently published Comment  to Model Rule 1.1, which provides that a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
And we are of course seeing this explosive trend in the adaptation of X1 Social Discovery. Over 250 eDiscovery and computer forensics services firms have at least one paid copy of X1 Social Discovery. I can think of no greater validation of a software or process than this mass and widespread adaption by these early adopters, who are of course the experts on best practices and litigation technology trends.
After the adoption by eDiscovery consultants comes law firms, and we count over 100 as paid customers, ranging from several dozen AMLaw 100 firms to small five attorney operations. And the strong adoption of law enforcement and government regulatory agencies is also a compelling indicator, where we count over 120 such agencies worldwide as customers.
But clearly the results from our Westlaw survey and the opinions of the Florida, New Hampshire, Pennsylvania and American Bar Associations speak for themselves. And, if that is not enough, you can see from an earlier blog post just how costly it can be to manually collect, preserve, and review social media evidence. So, if you are one of the soon to become minority of digital investigative or eDiscovery professionals who have not adopted X1 Social Discovery, please contact us for a demo today.