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As an epilogue to our recent post identifying various relevant social media evidence missed by prosecutors in the State of Florida vs. George Zimmerman prosecution, another instructive moment illustrated the importance of general website evidence and why many of our law firm clients tell us they capture website evidence on a daily basis. I’ll have more on that second point later.

Zimmerman’s lawyers called Mixed Martial Arts (MMA) trainer Adam Pollock, who trained George Zimmerman at his Florida gym from October of 2010 until “the end of 2011″— about two months before the shooting of Trayvon Martin. The defense, with apparent success, cited Pollock’s testimony to establish that the former neighborhood watch volunteer was an unaccomplished fighter and ineffective at self-defense. “He was an overweight, large man when he came to us, a very pleasant, very nice man, but physically soft – predominantly fat,” Pollock testified. “Not a lot of muscle. Not a lot of strength.” “He was about a 1,” said Pollock, when asked to rank Zimmerman’s athletic skill on a scale of 1 to 10.

It turns out however, that Pollock’s gym prominently and proudly advertised George Zimmerman as their client, offering information about obtaining the same self-defense training he received:

Click image to enlarge

This evidence, which was captured by X1 Social Discovery, would suggest bias and arguably contradicts Zimmerman’s lawyers assertion that he lacked self-defense prowess. The prosecution did not have this information available on cross-examination and, apparently learning of it at a later time, tried to re-call Pollock as a rebuttal witness. However, the court sustained the defenses’ objection on procedural grounds, noting that the State should have raised the issue on cross-examination. Also, as a side note, this web page had been deleted by then.

This is just one illustration as to why our larger law firm clients tell us they employ X1 Social Discovery on a daily — sometimes hourly — basis, as website evidence factors prominently into many types of legal matters. Witnesses often maintain personal websites or are employed by a company with a large website that often harbors bits of key information buried in the recesses of the site, yet are publicly available.

As such, all available website evidence associated with parties and witnesses should be preserved when their identities become known. Due diligence for mergers and acquisition and other securities matters, compliance monitoring, and discovery related to business disputes and intellectual property are other use cases that require extensive capture analysis of website data.

But only best practices technology that provides a scalable, automated, defensible and cost-effective capability enables website collections to be performed on a routine and standard basis. Simple screen captures are not defensible, do not scale as they only allow very limited coverage of an entire site, do not collect source page data (which often presents key evidence) and do not allow for instant search of the collected data, which is essential for a scalable and effective process. With tools like X1 Social Discovery, website data can be collected either on a single web capture or by crawling an entire site consisting of thousands of pages. Additionally, the data is instantly searchable and subject to litigation review process with filtering, intuitive first pass review, tagging, and finally export to attorney review platforms for tertiary review and production.

As with the case of other forms of electronic evidence collection, the compelling legal requirement exists long before scalable, automated and cost-effective technical solutions are developed. Now that such tools are available, we are seeing more and more legal professionals bake-in website evidence capture, along with social media, into their routine discovery processes.

This past July, as part of our ongoing effort to monitor legal developments concerning social media evidence, we searched online legal databases of state and federal court decisions across the United States to identify the number of cases, in the first half of 2012, where evidence from social networking sites played a significant role. The overall tally came in at 319 cases for this 6 month period, which is about an 85 % increase in the number of published social media cases over the same period in 2011, as reported by our prior survey earlier this year.

As we continue to monitor Westlaw and other sources on a daily basis, the indications are that this increase in the prominence of social media evidence continues unabated. We will have a full end of the year report, but for now the following are brief synopses of three of the more notable reported social media cases from the past 75 days:

Rene v. State, 2012 WL 3223667 (Tex. Ct. of Appeals, Aug. 9, 2012)

This case involved an evidentiary authentication challenge to social media evidence introduced through mere printouts of screen captures. The Defendant’s appealed his conviction of sexual assault of a minor child on the grounds that the MySpace pages offered into evidence by the prosecution did not have a proper foundation, and that the prosecution presented no evidence showing that the photographs were unaltered. The Texas appellate court noted in its decision that the prosecution offered minimal circumstantial evidence to establish the authenticity of the MySpace pages and no evidence to demonstrate that the photos were not altered.  However, in upholding the conviction, the court ultimately determined that even if the prosecution failed to establish a proper foundation for the social media evidence, such error was harmless.

This case illustrates the perils of relying on mere printouts of key social media evidence. A determination of harmless error by an appellate court is very subjective and fact specific. The much better approach is for the proponent of social media evidence to collect and preserve such evidence with best practices technology to establish a proper foundation by 1) automatically generating MD5 hash values of the evidence and collection logs including date stamps at the time of collection; 2) collecting all available metadata associated with social media items; and 3) collect the full account as opposed to limited and incomplete segments. Only with this approach can the proponent of the evidence represent that best practices were employed in the collection and preservation of the social media evidence in question.

United States v. Meregildo, F. Supp. 2d, 2012 WL 3264501 (S.D.N.Y. Aug. 10, 2012)

In this case, the defendant sought to suppress evidence from his Facebook account obtained by the government through a cooperator who “friended” him on the social media site. The defendant posted messages to his account boasting prior acts of violence and threatening rival gang members.  One of the Defendant’s “friends” — who became a cooperating witness — had access to all of this content by virtue of being the Defendant’s Facebook friend and turned that evidence over to law enforcement.

The court determined that there is no Fourth Amendment protection in publicly posted information. Nor is there necessarily such protection for data posted that is viewable by a network of “friends”, even though subject to more restrictive privacy settings.  The court noted that the defendant’s profile allowed his friends to view a list of all his other friends, “as well as messages and photographs that Colon and others posted to Colon’s profile.” Because the privacy settings allowed Colon’s friends to view materials posted to his Facebook account, the court determined that there was no Fourth Amendment violation:

Where Facebook privacy settings allow viewership of postings by “friends” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment…While Colon undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his “friends” would keep his profile private.

As such, the court determined that the defendant’s expectation of privacy ended when he posted, because his wide circle of “friends” were free to share those posts, just as a friend would be free to share a written letter or email. These posts, according to the court, were at Colon’s “peril.”

Thompson v. Autoliv ASP, Inc., 2012 WL 2342928 (D. Nev. June 20, 2012)

This is yet another personal injury claim where the claimant’s public Facebook postings contradicted their assertions of serious injury. In this products liability case, the defendant sought a court order compelling the plaintiff “to produce complete and un-redacted copies of [her] Facebook and other social networking site accounts.” The defendant based its motion on the plaintiff’s publically available Facebook wall posts and photographs that contradicted her claims of serious injury, and that the plaintiff changed her privacy settings shortly thereafter. The court found the plaintiff’s Facebook account discoverable and compelled its production.

Earlier this year we covered the case of Tompkins vs. Detroit Metropolitan Airport, which also highlighted the importance of systematic search of public Facebook as standard procedure for nearly every type of criminal and civil litigation investigation. These cases illustrate that any solution purporting to support eDiscovery for social media must have robust public search and collection capabilities. This means more than merely one-off screen scrapes but instead an ability to search, identify and capture up to millions of social media posts on a highly automated and scalable basis, and the ability to find all information that is publicly available but may not be readily apparent.

We will continue to monitor the case law on social media and report on significant developments. So stay tuned!