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Prevent Spoliation of Online Evidence

How to Ensure Preservation of Content Placed on Social Media Services, Web Sites & other Online Online Media

Checking in on Facebook…..and into potential litigation.

Do you need to gather evidence of online activities for potential future litigation or other legal requirement? In modern day situations, with the majority of our communications, movements, transactions and general records of daily activity being captured, placed and shared on social media, it is easy to see how this phenomenon is an asset to eDiscovery and legal resources.

Demands for access to and copies of clients and adversaries social media accounts are increasingly common practice in the legal sphere – from personal injury, employment and family law cases to criminal lawsuits, fraud and more. The ease and speed at which this data can be processed and preserved when using the right resources is by no means comparable to the potential damage its absence and spoliation could do to defending a case— and so it is understandable how Courts do not fare well with the deleting of such content.

Duty to preserve Social Media Accounts.

Content such as messages, posts and photographs placed on social media websites, regardless of their public or private settings, are forms of Electronically Stored Information. Therefore, your Twitter feed, Instagram photos, Facebook posts etc. are subject to such regulations regarding the preservation and spoliation of ESI.
duty to preserve social media

A litigant has a duty to preserve any form of Electronically Stored Information – if it is “relevant” to a case.

The concept of “relevance” to a case stands at a relatively low bar, in accordance with Apple inc v. Samsung Elecs. Co.; “information . . . is relevant to the claims or defenses of any party, or . . . is relevant to the subject matter involved in the action.”
To preserve or not to preserve?
This duty to preserve (or to not delete posts or deactivate relevant social media accounts) generally commences as soon as litigation has begun.
But for legal professionals this task of preservation can be far more onerous- as this duty ensues if a client is party to information with a likelihood of being relevant to future litigation.
Rule of Thumb: A duty to preserve ensues once a party has met with an attorney and decided to bring a lawsuit or when a person is accused by another of legal wrongdoing.
Note: In the employment context, the duty has been held to arise as soon as an employee files a charge of discrimination with an administrative agency.

When you shouldn’t delete that Tweet….


If a social media page or account is deleted (either in fragments or in its entirety) spoliation sanctions are not automatic – but these instances are easily created and extremely punishable.

1.The litigant must prove the deletion occurred with a “culpable state of mind”.

As standard with assessment of intent, this can range from the least culpable instances (gross negligence and negligence), to a higher degree of culpability (conscious disregard), to the courts’ recognized highest standard (bad faith, recklessness, willfulness).
Deleting content with the knowledge of and intent that it cannot be used in impending litigation falls within the the extreme parameters of Bad Faith.
Scarily enough for litigators, defenders and others alike – gross negligence and negligence include failing to take steps that might have prevented the destruction of ESI.
2. There must be prejudice from the loss of evidence.
With a bad-faith destruction of ESI- relevance and prejudice are presumed but some Courts are even party to the additional bar of allowing a presumption of prejudice in instances of gross negligence.
For (negligent) destruction of Social Media content to be decisively prejudicial: the party seeking spoliation sanctions must establish that his or her ability to defend themselves or prove their claim has been unfairly impaired in the absence of the destroyed evidence.

“While requiring the innocent party to demonstrate the relevance of information that it can never review may seem unfair, the party seeking relief has some obligation to make a showing of relevance and eventually prejudice, lest litigation become a “gotcha” game rather than a full and fair opportunity to air the merits of a dispute.” – Pension Comm., 685 F. Supp. 2d at 468.

Spoiling the other Party’s fun…
In arguing prejudice against their case in the absence of said ESI, a party must go above the bar of depending on abstract presumptions and prove that the potential evidence was relevant.
But as recent litigation shows, not only are those traditional hurdles necessary, but specific to Social Media content; parties must ensure that the evidence passes the bar of authentication in Court. As was seen throughout 2014 ( Moroccanoil vs. Marc Anthony Cosmetics, F.Supp.3d, (2014), United States vs. Vayner, 2014 WL 4942227 (C.A. 2 (N.Y.), Commonwealth v. Banas, 2014 WL 1096140) – mere printouts of social media content was not admissible as evidence in court.
Archiving Social Media Content v Spoliation. – Ref to Federal Rule of Evidence 37(e)
Firms failing to preserve and archive the Social Media content party to current, impending or potential cases are all too easily ignorant to:

  • The ease at which a party can be deemed “grossly negligent”.
  • The low bars of relevance and prejudice met in these cases.
  • The sanctions at hand; with adversary jury instruction the most common and most damaging to the outcome of a case.

Likewise, for parties seeking sanctions in defending or proving a case, standards for authentication of Social Media content in courts is rising.
The standard comparison to forms of traditional documents, and even ESI such as e-mail is being built upon, taking the ability of technology to alter, remedy and interfere with content placed on websites and social media into account – and demanding more than a mere printout as admissible evidence.
To archive this content when with special features such as digital time-stamp, e-signatures and in line with international compliance standards validates it as evidence in court.

Tags: #spoliation #litigation #archiving #DigitalEvidence #ESI #compliance #preservation #discovery #eDiscovery #data #littsupport #discoverability #DataManagement #EvidentiaryRequirements #BestPractice #RecordsManagement #dutytopreserve #SensitiveData #Rule37(e)

WebPreserver is an easy-to-use browser-based tool that captures posts like incriminating Facebook admissions, credibility destroying tweets etc. and preserves them with “evidentiary quality” for use in prosecution, litigation or administrative proceedings.

Spoliation Sanctions: Social Media “Clean Up”

Spoliation Legal Definition
Scholarly Articles: Spoliation

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