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Social media sleuths find evidence, but admissibility requires authentication

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Indiana Lawyer Focus

What happens on Facebook stays on Facebook – forever – and attorneys conceivably run into risk if they fail to investigate pertinent posts, a judge suggested during a recent presentation about social media evidence.

“There are a lot of lawyers in the state in their 70s and 80s who don’t know how to turn on a computer,” Marion Superior Court Master Commissioner David Hooper said. “Are you incompetent if you don’t know about Facebook and Twitter?” he asked.

15col-IL_Social_Media02.jpg Lyn Mettler, owner of Step Ahead Social Research, discovered a niche helping attorneys find evidence in the vast digital landscape of social media. Software allows her company to find even those online posts that a user may have deleted.(IL Photo/ Perry Reichanadter)

Whether attorneys do the work themselves, have staff work on social media discovery or hire a digital detective, experts say lawyers should develop practices to cover cases where there’s reason to believe social media might come into evidence.

Hooper suggested that investigating social media to find evidence is becoming so commonplace that attorneys must consider how and when they undertake such searches. Still, proliferation of social media has created a fast-evolving legal landscape, he said, in which influential cases are being handed down every month.

The increasing body of caselaw also presents a unified basis for getting social media evidence admitted. “They key is the information sought must be relevant,” said Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana.

Relevance alone isn’t enough, though. Printing out a social media post and submitting it as a piece of evidence won’t get it admitted. Judges can be expected to insist on stipulations that the evidence is authentic, and many judges are uncomfortable admitting such evidence.

“I think this is going to be a big issue for judges for a lot of reasons,” Marion Superior Judge David Shaheed said of authentication. “You have to be able to capture that website or blog on that particular day” when it’s alleged that the post was made, Shaheed said.

Hooper, Pratt and Shaheed were panelists during a recent presentation, “Litigation and Discovery: How to Get Social Media Evidence In and Keep It In,” sponsored by the Marion County Bar Association. Panelists said the bar is set high for admitting social media evidence.

“Judges are skeptical,” Hooper said. “We know there’s Photoshop … . We know an ex-girlfriend may still have someone’s password.”

The judges agreed that authenticating early is crucial. It can be done during discovery through depositions – confronting someone with a post and substantiating it’s his or hers – or in some instances by obtaining information about the posts from the website where it appeared.

Court of Appeals Judge Paul Mathias said Facebook, for instance, tracks the computer or device used to post a comment. That kind of detail can help nail down authenticity, but that information standing alone might not be sufficient.

An Indianapolis public relations company that specializes in monitoring and promoting social media mentions of brand names expanded its services a few months ago, identifying a niche of catering to attorneys looking for help in sleuthing social media.

“The system we use pulls public data back to 2008,” said Lyn Mettler, owner of Step Ahead Social Research. Even if a post has been deleted from Facebook, the proprietary software her company uses will bring it to light “so you’ll know you’re not missing anything,” Mettler said.

“We have access to their firehose, they call it,” she said. “Typically, if it’s public, we have access to their database.” The system Step Ahead uses has such agreements with numerous social media sites.

“We tend to find some of our best information going back to 2008,” she said, before people were thinking so much about what they posted.

Step Ahead currently is working with a law firm representing a Fortune 500 company involved in defending a class-action lawsuit from plaintiffs claiming medical injury.

“It’s amazing what we find,” she said. For instance, a plaintiff claiming an inability to do daily chores bragged online about running a mile and visiting a theme park. The company also was able to track a plaintiff who posted frequently on a gaming forum and to identify plaintiffs who had died.

Step Ahead also was able to produce a litigant’s MySpace post declaring, “Wish I could find someone to sue for lots of money!”

Even if the evidence isn’t directly admitted, it can be useful to match up birthdates, email accounts or other personal identifiers, or even to confirm information, Mettler said. “Frequently, the information is just used as fodder for depositions, such as, ‘Is it true you visited Disney Land on this date?’”

Mettler has been pleased with the interest expressed in her company’s services, especially during a recent Defense Trial Counsel of Indiana rookie seminar.

“We are ultimately less expensive than paying a paralegal by the hour,” she said, because the search system is automated. The company’s fees can be negotiated by the hour or on a per-person monitoring basis.

Cathryn Goodman, vice president of marketing at X1 Discovery in Pasadena, Calif., said the company began providing software to users in 2011, and year-over-year sales have increased 400 to 500 percent. She estimated about 80 percent of business has been reactive versus about 20 percent proactive.

“That’s slightly changing. We’re starting to see a shift,” Goodman said. The increasing use of social media as evidence and the emerging body of caselaw has more people using advanced searching as a matter of course. “People are now realizing they need to check that box as well.”

The software provides access to social media databases for sites such as Facebook, Twitter, LinkedIn and YouTube that, upon a narrow search, yield dozens of data points, Goodman said. “It’s all the fine, fine details,” including the location from which the post was made, device identification and more.

A tweet, for instance, will provide data such as a timestamp, the poster’s ID and screen name, usernames of people who re-tweeted, and the kind of application used to send the tweet.

Facebook returns metadata such as user ID; account ID; recipients of a post; whether the post is a wall item, news item, photo or other content; associated links; and number of comments to a post, among others. “Right away they can see how the (search) time will be shortened,” Goodman said of people who’ve sampled the software.

Goodman said X1 licenses its software on an annual basis for less than $1,000 or perpetually for about $2,400, which includes future updates. “Literally, you own the software and go and do what you want with it,” Goodman said.

Meanwhile, the judges who offered advice to lawyers on social media evidence also took the opportunity to caution that what an attorney or judge posts online is fair game, too. Lawyers can run into trouble if they’re Facebook friends with a litigant, Shaheed said.

Pro se litigants, particularly, would be likely to point out such relationships. “Automatically, the presumption is, they’re behind the eight-ball,” Shaheed said.

Pratt said that while lawyers have to be vigilant about social media, the bar is much higher for judges and court staff. “We don’t allow people in our chambers to have Facebook pages,” she said. •

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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