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Federal Rules of Evidence 902(14) Update Requires Digital Authentication for Electronic Evidence

October 25th, 2017 by

Beginning December 1, 2017, an update to the Federal Rules of Evidence 902(14), which addresses the proper authentication of social media evidence, will take effect. While we’ll go into detail below, what it really comes down to is that the end has come for accepting screen shots or “print screen” images as digital evidence when it comes to web sites and social media data.

The new rule requires that electronic data be self-authenicating through digital identification. This means the data must be accompanied by metadata (such as date posted, account, user, etc.) and other means that can be verified. It aims to avoid having experts be required to authenticate such data.

courtroom - Federal_Rule_of_Evidence_902_14

The court has increasingly ruled that screen shots, which have no real accompanying metadata aside from noting when the screen was “captured” (nothing about the post itself, such as who posted it and when, meaning it could have been “Photoshopped” or altered) are NOT admissable as evidence.

Examples that apply include:

  • State of Louisiana v. Demontre Smith, La. Court of Appeals, April 20, 2016 – Social media posts ruled as inadmissible due to lack of authenticity, such as via testimony or identifying characteristics contained in posts to identify their creator.
  • Linscheid v. Natus Medical Inc., 2015 WL 1470122, at *5-6 (N.D. Ga. Mar. 30, 2015) – Court rules print-out of LinkedIn not sufficient to be admitted into evidence.
  • Moroccanoil vs. Marc Anthony Cosmetics (2014) – Court rules Facebook screenshots inadmissable.

The new rule puts the final nail in the coffin.

Federal Rules of Evidence 902(14)

The new rule reads as follows (read the official amendment adopted by the Supreme Court here starting at p. 116):

The following items of evidence are self authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11). 

Using software that DOES collect metadata on EACH social media post and website meets the requirement of self-authenticating documents and thus will be critical in meeting the requirements of the Rules of Evidence. Step Ahead Social Research uses a variety of these software tools to collect all public social media and web data about an individual, preserving it should they later alter or delete the items, and providing it to you in a way that is admissable.

We are experts in what tools to use for which scenario — whether we are downloading a Facebook profile, scanning a blog or conducting research on potential jurors. We know the advantages and disadvantages of each, employing the best tool for your situation and managing the process throughout, so you only have to review the final results.

Other benefits of these tools include:

  • Easy-to-view reports in both a spreadsheet and visual format (like scanning down the social media page itself)
  • Ability to limit data by post type, key word, date and more
  • Only downloads publicly-available information so there are no ethical concerns
  • Independently verifiable versus being collected by an on-staff individual who may need to testify and thus present a conflict of interest
  • Time-saving with automatic downloads of social media data
  • Continues to download posts as they are added for regular reporting, so you don’t miss anything

Are you ready for this new rule to go into effect? Are you prepared to collect social media and web data that may need to be submitted as evidence?

Contact us today for more information, rates and to start collecting and preserving social media and web data for your first case or claim. Email lyn AT socialmediainvestigation.com or call us at 317-855-9927.

When Restraining Orders Cover Social Media Communication

March 28th, 2016 by

This article originally appeared on Law360.com on March 3, 2016.

Does tagging a protected party on Facebook violate a restraining order or order of protection? What about tweeting the individual or mentioning them on Instagram? In December, a judge in New York state said it did, even though social media communication was not explicitly prohibited in the order of protection.

In The People v. Gonzalez, 15-6081M, the court ruled that when Maria Gonzalez “tagged” the protected individual in two posts, calling her “sad” and “stupid,” she did in fact violate the order. The order of protection issued against her required that she “refrain from communication or any other contact, directly or indirectly through third parties, by mail, telephone, e-mail, voice mail or other electronic or any other means.”

But how do you demonstrate that Gonzalez did or did not “tag” the individual beyond providing a potentially alterable screen capture, especially if parties in such cases deny the communication or delete it? Some attorneys use social media monitoring companies to provide verifiable data of the date, time and account of the post.

What Types of Communication Are Included?

While in this instance the court ruled that the social media communication was clearly in violation of the order, determining if such types of interactions are included is not always so clear-cut. “This is yet another case where the judiciary is struggling to keep up with the speed at which the technology world is moving as it impacts all of our lives,” says attorney James Goodnow, who chairs the technology and cybersecurity torts practice group at Lamber-Goodnow in Phoenix, Arizona.

Requirements for restraining orders and orders of protection vary by state and according to the original language of the order, though many attorneys agree that any form of communication, including social media, is implied. “A judge can specify in the restraining order if social media is included, especially if there is a history of harassment over the particular medium,” says Greg Freyberger, partner and trial attorney at Wooden McLaughlin in Evansville, Indiana. “However, I think if a judge enters a restraining order or protective order prohibiting contact, it is not unlikely that they would hold someone in contempt if that person posted something on social media and had a good idea that it would make it to the protected individual.”

Lisa Connor, a family law attorney in Chattanooga, Tennessee, notes that if a restraining order has a “no contact”
provision, then there certainly can be no direct communication over any media or social media format.

Even indirect communication may fall within the scope of the order, such as in California, where the standard restraining order precludes both direct and indirect communications, according to Bryan Sullivan, partner at Early Sullivan Wright Gizer & McRae LLP. “The issues come up with posts on social media that are not directed at the victim,” he says. “Depending on what is written, those posts can be interpreted as indirect communications or attempts to send a message to the victim.”

Connor cautions even if indirect communication is not explicitly included, “once you have reached the point where there is a restraining order or order of protection, then assume that every comment you make on social media could come into evidence in your case. Worse, if there is an angry or threatening tone, then it could be considered stalking behavior.”

She also explains that in divorce cases where there are minor children that a mutual restraining order requires the parents not to speak ill of one another to their children. “If your children are within your social network and have access to your comments, then any disparaging comments about your spouse could be considered to be in violation of the order,” she says.

Proving Social Media Communications

If such communication is not explicitly prohibited in the restraining order, the burden is on the defense to demonstrate it is not included within the requirements of the order, says Dallas attorney Peter Vogel, chairman of the Internet, e-commerce and technology industry team at Gardere Wynne Sewell LLP.

Additionally, the accuser must provide evidence of such communication to demonstrate the action did in fact take place. This is where social media monitering companies come into play, assisting attorneys with social media evidence beyond a standard screenshot that can be Photoshopped.

For example, we had an individual come to us who was accused of violating a restraining order against her by tagging the accusing party in a tweet. The accuser had taken a supposed screen capture of said tweet on her phone, which the accused claimed had been Photoshopped from an existing tweet.

In this instance, it is up to the accuser to prove that this tweet was in fact posted to the offending account at a specific date and time; however, this simple photo image capture was not verifiable. Social media monitoring companies can download and preserve public social media data with verifiable metadata that capture the account, date, time and even geographic data if it was so tagged that can be submitted into evidence as proof the posting did occur. Without such data, it can certainly be argued that the image was fabricated.

Additionally, Mark McBride, a high-profile criminal attorney in Beverly Hills, says, “the moving party would need to bring in the person most knowledgeable regarding that type of media platform.” An expert in social media communications can render his/her opinion as to why the post did or did not actually occur, using factual evidence to support their statements.

Sample Cases

McBride says he’s been involved with two cases where he defended an individual accused of violating a restraining order through the tagging an individual on Facebook and the consequences were serious. “In one, the judge gave my client a strong warning; in the other, the judge increased the terms of the restraining order from one year to three years,” he says.

In 2008, in the People v. Fernino, 19 Misc3d 290 (Crim. Ct, Richmond Co., NY 2008), the court ruled that a MySpace friend request did violate a family court temporary order of protection, which only specified that the “Respondent should have NO CONTACT” with the party, but did not explicitly prohibit social media. The decision stated, “It is no different than if the defendant arranged for any agent to make known to a claimant, ‘Your former friend wants to communicate with you. Are you interested?’”

In New Hampshire v. Craig,[1] the state Supreme Court in 2015 upheld Brian Craig’s prior convictions of witness tampering and stalking. Craig, for whom a permanent restraining order was in place regarding contact with a bartender, posted comments directed to the individual in the “Notes” section of his Facebook page, though without tagging her. Craig admitted to a police officer that he did write the posts. For the stalking charge, the court ruled that this activity met the contact requirements to convict even though the communication wasn’t sent explicitly to her, stating, “any action to communicate with another either directly or indirectly constitutes contact.”

In 2013, ABC News reported that a Massachusetts man was arrested for violating a restraining order against his former girlfriend when she received an email from him asking her to join Google Plus. The man maintained that Google did it without his knowledge.

According to ABC News, a Google community manager responded in a forum, stating, “Right now the emails that go out alert people of your activity on Google+, and more importantly the sharing of content with them. We send them an email when they aren’t yet on Google+ so they know that you are out there in the world [of] G+. They should only incur this email once.” So the man may not have actually initiated the email, yet was jailed for it. Ultimately, the criminal charges against him were dismissed.

Best Practices for Social Media Communications

When it comes to restraining orders, it’s important for attorneys to be as specific as possible in the wording of the requested order to ensure maximum clarity for both sides. “The greater the specificity of the order, the better,” says Vogel, noting that lack of specificity makes it easier for the other side to argue such communication was not included.

For individuals who have restraining orders against them, it should be assumed that any form of communication on any media is included. It’s also good practice to actually block the person who sought to restrain you in the first place, advises McBride.

Trying to toe the line with the restraining order is also a bad idea. “Just like the old saying about how to hit a tennis ball, you’re taking a huge risk when you try to stay just inside the lines,” says Jeremy Mishkin, co-chairman of the litigation department at Montgomery McCracken Walker & Rhoads LLP in Philadelphia.

It’s important to remember that social media monitoring companies may be monitoring and collecting your public communications without your notice, so assume anything and everything is potentially admissible. Connor advises, “Before you make that next posting, give yourself a Miranda warning — that anything you say can, and will, be used against you.”

—By Lyn Mettler, Step Ahead Social Research

Lyn Mettler is the president of Step Ahead Social Research, a company that uses automated software systems to collect, preserve and validate public social media and Web data for attorneys.

 

Social Media as a Measure of Cognitive Ability

March 21st, 2016 by

This article originally appeared on Law360.com on March 21, 2016.

In cases where individuals are claiming brain injury or reduced cognitive abilities as the result of an accident, medical procedure or taking a specific drug, there are many ways to attempt to demonstrate if they are or are not telling the truth.

With so much of the world now using social media from posting on Facebook to sharing photos on Instagram to tweeting all range of information, can social media be a helpful measure of cognitive ability?

Increasingly it is coming into play in a variety of lawsuits, from the content of an individual’s postings to activity that seemingly conflicts with claims. But is it a fair measure? Studies seem inconclusive on the subject so far, but that hasn’t stopped attorneys from raising the question and requesting full access to social media accounts to reveal potentially damaging activity.

Content of Posts

One of the easiest ways social media is used to discredit claims of brain injury is when a subject posts content directly refuting such claims. Dr. David Reiss, a psychiatrist in private practice in San Diego, served as an expert on a case where an individual was claiming to be totally disabled both physically and mentally yet was posting about a successful business on Facebook.

Dr. Reiss says they posted about attending meetings and winning a car for their sales, yet when questioned admitted that those were lies. “It’s whether they are able to attempt to work versus whether they are successful,” he says. “They were at least able to go to meetings and put these posts together, so at worst they were partially disabled.”

In my company’s work collecting and preserving historic and real-time social media data on individuals, we have come across individuals directly stating they are looking for someone to sue for big money, individuals running marathon after marathon who are claiming injury and people regularly traveling and going about their day-to-day lives who are maintaining they have a reduced quality of life.

Profile Setup

Does setting up a Facebook page or other social media account from scratch require a certain level of cognitive function?

In Winchell v. Lopiccolo (N.Y. Sup Ct 2012), the plaintiff claimed “impaired cognitive functioning” after a car accident, and the defense maintained that the layout of her Facebook would demonstrate cognitive function. They requested access to the plaintiff’s private profile, contending, “the layout of a Facebook page calls for creativity of some sort as well as thought in providing captions for photographs, narrative posts written by the plaintiff as well as her ability to write and comment. Writings on the page would be direct and circumstantial evidence of her claims. Moreover, lucid and logical writing or a lack thereof would be useful in the defense and/or assessment of this case.”

The court did not agree, stating “the party demanding access to social networking accounts must show that the method of discovery will lead to ‘the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information that bears on the claims,’ … defendants cannot point to anything concrete. Instead, they hope to divine the extent of Plaintiff’s cognitive injuries from reading every bit of information on her Facebook page.”

Dr. Reiss disagrees, “It may have taken [a person] a long time to set up the page, but the fact that they did it shows they are not totally disabled and there is a capability to accomplish something.”

Length of Posts and Response Time

Another measure of cognitive ability that is frequently overlooked is close examination of the posts, messages and interactions on a social media account.

In an ongoing case where an individual was claiming a dramatic loss of brain function and the inability to concentrate for even a short amount of time as the result of an accident, we served as an expert in social media working with a psychiatrist to examine this person’s Facebook activity. After being granted access to the plaintiff’s full Facebook profile, we closely examined the length of postings and messages to help demonstrate some ability to concentrate, at least long enough to draft a somewhat lengthy post. By looking at the length of the message and how long it took the plaintiff to respond, the psychiatrist was able to offer an opinion of the person’s true ability to concentrate.

Dr. Reiss also notes that even repetitive posting on Twitter where a person may be going back and forth with other users shows they can concentrate for a period of time.

Game Play

Social media, especially Facebook, is filled with all manner of games from sudoku to Farmville. Does the ability to play some of these games speak to a person’s mental capacity?

My company has been asked to preserve and examine a person’s game-playing specifically on Facebook, helping attorneys determine what games were played, what levels were achieved and for how long they played.

Numerous studies, however, have shown that Facebook and other social media can be beneficial to individuals with dementia or brain injury both in improving cognitive ability and for socialization. So the case could be made that these games are being played precisely because the individual does have reduced cognitive function.

Plus, according to Dr. Reiss, just because an individual is playing a game doesn’t mean that he or she is not struggling with it or necessarily good at it. But you can look at exactly what they are doing, how often they are doing it and for how long, he says, noting these activities can reveal information about concentration, endurance and their ability to be logically focused.

Accessing This Data

While some social media data may be public and accessible to attorneys, it may not be easy to capture with credibility and to review. Social media experts and companies who mine such data for attorneys may be able to provide public downloads into easier-to-review formats, such as spreadsheets or PDFs. Spreadsheets are sortable by numerous variables, including date, type of post and content. This can make finding the right data much more efficient and result in data that is verifiable because it has attached metadata as opposed to capturing a screenshot, which the prosecuting attorney could argue could have been altered.

Such information can also be downloaded in full, complete with private messages, original image files and metadata, if the plaintiff has been compelled to hand over their username and password.

If such data could become valuable at any point during the case, it’s important to download and preserve that data using a verifiable method, as quickly as possible before any items are deleted. Some firms even offer the ability to demonstrate spoliation when data that has been preserved is altered or deleted after plaintiffs have been advised against such activities.

Additionally, attorneys can request a full download from Facebook or Twitter from within the individual’s account. These downloads provide information about log-in and log-out times and length of sessions within the past few months, so again it’s important to ask for this data set quickly before too much time has passed.

Have you considered using social media as a measurement of brain function in cases where mental disability is at issue? “I expect social media will grow as a source of information for such cases,” says Dr. Reiss. “I think [attorneys] will probably get a lot more information if they routinely took a look at social media.”

Lyn Mettler is the president of Step Ahead Social Research, a company that uses automated software systems to collect, preserve and validate public social media and Web data for attorneys.