Social media evidence is part of just about every type of litigation today, so it’s critical for attorneys and investigators to address its collection, authentication and presentation.

Because it’s a relatively new field, new challenges and solutions are coming to light each month as more and more social media e-discovery is being used in court. It’s becoming clear that it can be a huge source of evidence for both sides in any case, so understanding how to leverage it will ensure that the e-discovery process doesn’t miss important information that’s relevant to a case.

Collect and Preserve

A recent webinar presented by x1 Discovery, entitled eDiscovery for Social Media: Fast and Defensible Methods to Collect and Preserve Evidence, examined the challenges and presented the company’s product as a solution. The challenges and opportunities presented in the webinar provide valuable information for anyone looking at social media for evidence, whether or not the x1 Discovery product is part of the solution, so I thought it would be worthwhile to outline some of the main points made in the webinar.

Erik Laykin, Managing Director, Global Electronic Discovery and Investigations, Duff & Phelps, talked about some of the biggest challenges of preserving social media evidence so that it’s defensible in court, and collecting dynamic, constantly changing information in a way that truly represents what was on the screen at the time of collection. Some of the challenges lie in data authentication and chain of custody, he said.

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We’ve blogged before about using screen captures and even printing out pages of a user’s profile to be used as evidence, but how do you authenticate that material in the event that the user denies being the creator of the content?

When you just take a screenshot, which is traditionally a legitimate tool in e-discovery, you miss the metadata behind the scenes, said Laykin. You’re not getting the interactivity of the system, the links and the multiple layers of data that may exist, and this could impact whether or not the evidence will hold up in court.

The progress of computing and the presence of the cloud means that computing is no longer device reliant. Users can access social media from a broad base of devices and from anywhere. This can be important in a court case where you want to establish where a person was at a certain time, or prove that he or she wrote what is being used as evidence.

The Importance of Metadata

John Patzakis, President and CEO, X1 Discovery, talked about some of the case law evolving and the fact that the courts grant access to a user’s private portion only when there is some indication that there is relevant information to be found. Even then, identifying characteristics are necessary to tie the user to the evidence. This can be proven through metadata.

Facebook has more than 20 metadata fields, explained Patzakis. Some of them are:

• Created time: when a post or message on Facebook was created
• Thread id: unique identifier of a message thread
• Recipients: all recipients of a message by name
• Post id: unique id number of a wall post
• Application: the medium (device) used to post a Facebook item
• User id: unique id of the item poster/author
• Account id: unique id of a user’s account

It’s easy to see how some of this information would be highly relevant in establishing who posted the material, when, and sometimes even where (especially in the case of Twitter’s geolocation services).

The best approach, say the experts, is to use official channels to get the subject’s username and password, ensuring access to the most telling information his or her social media sites. Only then can you be sure your electronic evidence will hold up in court.