Whether you’re looking for answers on Facebook posts and comments, Instagram pictures, Twitter tweets or YouTube videos, the short answer is yes; both public and private social media content can be admissible in litigation.
How to Capture Social Media Evidence in a Way That is Admissible
There are best practices to follow when collecting social media content that strengthens a web capture’s admissibility.
To start, it is a best practice for attorneys to capture an entire social media profile including all profile sections, such as Facebook About, Groups, and Friends pages. In addition to all sections, it’s recommended to capture all posts and comments (including scrolling, expandable and archived content) within a profile to not only have it documented in case it gets deleted, but also to provide the full context of the posts and conversations. Many cases, such as IL v. Lorenzo Kent, demonstrate why it’s vital to capture an entire Facebook profile, and not just parts of it.
It’s also important that attorneys stay current on social media technology and know where evidence may hide within those platforms. For example, in a rape trial out of England, law enforcement were unfamiliar with Facebook and failed to collect conversations that would have proved a young man innocent prior to him being wrongfully convicted.
Additional best practices include:
- Capturing all metadata associated with the content to prove authenticity (IP addresses, timestamps, URLs, etc.).
- Leveraging web collection technology that removes attorneys and their staff from the chain of custody.
- Obtaining an affidavit to verify the authenticity of the web capture technology and the capture method.
- Capturing a true and accurate representation of the web content so that when saving or printing, it looks exactly like it appears online.
If an attorney is not able to follow these best practices, it’s better to work with a web collection service designed for legal that would be able to properly assist and collect specified web content during discovery or litigation.
Other Information You Need to Know About Admissible Social Media Evidence:
- In 2017, the Federal Rules of Evidence (FRE) were amended to add two additional sections (Rule 902(13) and (14)) that address electronic data and authentication, including web evidence. Prior to these amendments, an attorney would have needed an expert sworn in to testify to the authenticity of the web evidence. Now, a certification from a qualified e-Discovery collection expert can attest to the authenticity. Read more web evidence collection rules >
- An attorney has ethical responsibilities when searching on social media platforms and collecting content to be used as evidence. For instance, it’s unethical to attempt to gain access to private content or a private Facebook account in a deceitful manner (e.g. “friending” someone to gain access to non-public content), or advise a client to change their social media content so as to tamper with evidence. Even failing to stay up to date on current technology platforms can cause ethical issues for attorneys when advising clients. Read more about social media ethics >
About Page Vault
Page Vault helps legal professionals to capture and preserve web content such as webpages, websites, social media, videos, and images. Users can have confidence in knowing that Page Vault’s collection experts accurately preserve all necessary content and supporting data within the requested output format. Whether using their in-house software or vendor services, Page Vault can accommodate projects of any volume or complexity.