Social Media Harvesting: A New Frontier In eDiscovery.

Social media is truly the new frontier in many types of legal proceedings.

The huge majority of us use social media in our daily lives. Indeed, 91% of adults today use social media regularly and that number only continues to increase, along with the value to all facets and disciplines of modern litigation. Don’t take our word for it, click the icons below to perform a Google Search for Social Media news in some common Litigation practice types. It’s huge and largely unaddressed by modern legal collection initiatives.

Social Media Extends Well Beyond Facebook.

1 billion people actively use Facebook each month. In 2009, social media officially surpassed email as the preferred form of electronic communication worldwide. According to the most recent Pew Research Study issued in 2018, roughly two-thirds of U.S. adults now report that they are Facebook users, and roughly three-quarters of those users access Facebook on a daily basis. social media usage in the United States alone has increased by 356% since 2016 alone.

  • 94% of 18 to 24 year olds
  • 78% of 25 to 45 year olds
  • 71% use Instagram
  • 58% use Twitter
  • 74% of Facebook users visit the site daily
  • 63% visit Snapchat daily
  • 65% visit Instagram daily

The median American uses at least three of the eight major social media networks regularly. The sheer volume of information available from social media providers is astounding and is a digital goldmine of potential evidence. Access to social media profiles, friend lists, group memberships, messages, chat logs, photos, tweets, videos, GPS locations, check-ins – these sources of information are invaluable sources of evidence. one can access the user’s profile, wall posts, photos that the user uploaded, or in which the user was tagged, a list of the user’s friends and location services information from user check-ins to different paces. Indeed, with the advent of Twitter, FourSquare and other such services, location-based data will only increase, as users check in and record their activity and locations.

Defensibility and Admissibility

Availability and Defensibility

Unfortunately many are concerned that the online evidence they need to win their case has a chance of being dismissed. Platinum automates the process with the only fully defensible social media and website capture solution, making it possible for counsel to meet threshold evidentiary requirements when serving their clients.

The courts have ruled that screenshots or print screen captures from Social Media platforms are not admissible as evidence and this ruling has been upheld over 1,000 times in both state and federal courts.

Platinum’s forensically sound solution greatly reduces the risk of having crucial evidence dismissed. A recent search of online legal databases of state and federal court decisions across the United States reveals that the number of published cases in which evidence from social networking sites played a significant role nearly doubled in 2018 alone. Literally thousands of cases ruled on the the grounds of evidence presented from social media between 2015 and 2018.

This statistic is telling, particularly considering that only a very small number of cases involve a published decision that can be accessed online. There are likely thousands of additional cases nationwide where social media evidence was relevant to a decision or investigation, even if not ultimately published or litigated to a final published decision. It is expected that these numbers will only continue to increase each year. In fact, in the last two years alone, 52% of lawyers have reported an increase in lawsuits related to postings, images and data from social media and mobile devices, according to a study from Robert Half.

“The prevalence of social media in criminal proceedings will continue to proliferate as government agencies continue to formally train their personnel to collect social media evidence.” And it’s not only criminal matters in which social media is proving of critical importance to litigation. As noted by an Exterro, Inc. survey published in 2018, “E-discovery is a $9 billion industry and is expected to more than double in size by 2022 to over $18 billion”

What can be done?

Adoption Of Solutions

The types of cases being litigated span a variety of practice areas, but all share one thing in common – an increased usage of social media as an integral part of the discovery and evidentiary process. These include both criminal cases and civil.

The ability to capture social media data quickly, effectively and efficiently is an invaluable tool for litigators and for clients in all varieties of legal and investigative practice. Courts are increasingly demanding that the content of social media accounts be produced in discovery.

Platinum’s solution is available as a service on demand. The amount of content we can capture is virtually unlimited from any website, blog, social media platform or other web resource. All of the captured content is presented with full chain of custody and forensic hashing. Content can be imported as records into a traditional litigation support review database, or supplied with compatible platform load files including EDRM XML.

Talk with one of our consultants about your next social media capture initiative through the web chat app, or sign up for a demonstration by clicking the ‘Get Started’ button below.

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More reading:

1. JDSupra: The risks of Social Media in Litigation, https://www.jdsupra.com/legalnews/the-risks-of-social-media-in-litigation-92466/

2. “Social Media and the Rules on Authentication”, Breanne M. Democko, 43 U.Tol.L.Rev. 367, 376 (2012) http://www.pewinternet.org/2018/03/01/social-media-use-in-2018/

3. Creative Uses of Social Media in Litigation, Mark A. Berman November 05, 2018https://www.law.com/newyorklawjournal/2018/11/05/creative-uses-of-social-media-in-litigation/?slreturn=20190111124052

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