The Major Challenges in Using Social Media in Litigation
Even in today's world where everything on the internet is said to be permanent, the volatile nature of the world wide web coupled with computer-savvy netizens still make it a challenge to use posts and information gathered from social media as evidence in litigation. The absence of clear guidelines and condensed, useful information can still render e-discovery useless.
Despite stories proving otherwise, a lot of people still believe that when something is deleted on a social media account, a trail of evidence can still lead to it. However, if the poster (the original person who created the post) is able to delete it from the servers, the other party would find it hard or might not even be able to locate the trail or the original post. Many people are intelligent enough to at least attempt this when they are facing litigation. If the poster deletes the post successfully, the information used for evidenced could be regarded as outdated or even disregarded.
When one is presenting to a judge or jury, one is attempting to tell a believable story. Social media discovery materials, when used correctly, help make your story more credible. When creating a "big picture" for the judge or jury making a determination, tweets or online posts that indicate intent or any other part of the story that is central to your case can be very helpful. All of this will be dependent on your lawyer's ability to obtain e-discovery (electronically stored information) materials and preserving (archiving) them in a safe location so that they can be used in court proceedings.
Another challenge is authentication of social media posts for the courtroom. Attorneys who are familiar with the Federal Rules of Evidence know that when social media posts are used as e-discovery material, the post itself is not enough. Beyond the screenshot of the post itself, information about it should be provided so that it can be considered for admission in court. Metadata of a social media post often include the means of creation of the post, time and date of creation, creator or author of the post and location on a computer network where the post was created. That is just for a text post. In a media-rich post, related links, videos, embedded files within the post should be recorded as well.
A lawyer should be responsible in making sure that e-discovery materials containing social media posts are forensically accurate and that they pass a jury's scrutiny or, moreover, be given the appropriate weight relative to the case.
Despite stories proving otherwise, a lot of people still believe that when something is deleted on a social media account, a trail of evidence can still lead to it. However, if the poster (the original person who created the post) is able to delete it from the servers, the other party would find it hard or might not even be able to locate the trail or the original post. Many people are intelligent enough to at least attempt this when they are facing litigation. If the poster deletes the post successfully, the information used for evidenced could be regarded as outdated or even disregarded.
When one is presenting to a judge or jury, one is attempting to tell a believable story. Social media discovery materials, when used correctly, help make your story more credible. When creating a "big picture" for the judge or jury making a determination, tweets or online posts that indicate intent or any other part of the story that is central to your case can be very helpful. All of this will be dependent on your lawyer's ability to obtain e-discovery (electronically stored information) materials and preserving (archiving) them in a safe location so that they can be used in court proceedings.
Another challenge is authentication of social media posts for the courtroom. Attorneys who are familiar with the Federal Rules of Evidence know that when social media posts are used as e-discovery material, the post itself is not enough. Beyond the screenshot of the post itself, information about it should be provided so that it can be considered for admission in court. Metadata of a social media post often include the means of creation of the post, time and date of creation, creator or author of the post and location on a computer network where the post was created. That is just for a text post. In a media-rich post, related links, videos, embedded files within the post should be recorded as well.
A lawyer should be responsible in making sure that e-discovery materials containing social media posts are forensically accurate and that they pass a jury's scrutiny or, moreover, be given the appropriate weight relative to the case.
