Finding Treasure in Updates, Photos, Tweets and Comments

Used correctly, social media can provide an e-discovery bonus in a workplace investigation

Posted by Dawn Lomer in on December 15th, 2011

When defense lawyers in a disability investigation presented pictures from a supposedly injured woman’s Facebook profile showing her whitewater rafting, golfing and rock climbing, the judge, unsurprisingly, found that the claimant’s description of her pain was at odds with her condition and capacity and she lost the case. It’s a scenario that is being played out in the courts more and more often.

Clearly, social media evidence is becoming commonplace in investigations, but methods of accessing and recording the information in a way that’s ethical and legal aren’t quite so clear. To make matters even more complicated, how you can access information and what information you can use as evidence each has its own set of developing rules. Keeping abreast of these rules as social media case law develops can provide an advantage to a defendant in a lawsuit.

Gathering Evidence

Collecting evidence from social media sites can be challenging for several reasons. Social media is constantly changing, and users can easily update and delete material that could be evidence in a case. In addition, many users have their privacy settings set in such a way that only their friends can see their profile information, which brings up several other issues of legal access and privacy rights.

So far there are relatively few standardized, widely accepted methods for gathering evidence from social media sites, says attorney Benjamin Wright, who is an expert in e-discovery as well as an author and instructor at SANS Institute. “A common approach is for someone to just try to print what they see on their screen onto a piece of paper and show it to the judge or administrator,” he says.

Tools for Evidence Gathering

FREE Investigation Report Template

Prepare thorough, consistent investigation reports with our free report template.

Download Template
“There are some very sophisticated tools, typically used by police for recording what a police officer sees at a particular time, and a lot of sophisticated information about the IP address where the information is coming from at that time,” says Wright, who has blogged about a tool called Screencast, which can be used to record in real time what an investigator sees and a webcam image of the investigator narrating what he or she sees at a particular time on social media.


Considering a Warrant

“If you are conducting a law enforcement type of action, depending upon the situation, depending upon the expectations of privacy, you may be wise to get a search warrant, or some other kind of court approval for the type of investigation that you are conducting,” says Wright. “There is a general recognition – although this is not universal because this is such a brand new field – that if information is publicly available, displayed through what a consumer would normally see through a browser, that some type of investigator has the right to view it and to make some kind of a record of it for purposes of advancing the investigation. That is a general idea that has not been widely tested in courts.”

Access and Privacy

Even when information is publicly available, though, there can be legal issues related to its discovery, warns Wright. These can include copyright violations and privacy violations based on statements they may have written on their social media pages.

“So there could be this argument that says there’s an element of privacy just based on the words and they way the words are expressed on that privacy page,” says Wright. Topics related to violations of privacy and copyright have not been well litigated or even understood, says Wright. “We are in a very brand new world here and there’s very little in the way of authoritative guidance on this.”

With hundreds of millions of people actively using social media, it can provide a powerful tool in the search for truth. It’s important to be proactive in accommodating this innovative evidence and stay abreast of the case law as it develops to ensure every advantage in getting the truth heard.

Dawn Lomer
Dawn Lomer

Managing Editor

Dawn Lomer is the managing editor at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.