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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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