Capturing web pages and social media for legal use is an increasingly complex issue that more attorneys are facing today. Just a few years ago, courts did not consider online content to be self-authenticating, meaning litigators had to resort to foundation witness testimony and other authentication tactics to ensure admissibility. With 3 in 4 attorneys today reporting that at least a quarter of their cases require them to collect electronically-stored information, this process needed to change to reduce procedural burdens and costs. And it did—new amendments to the Federal Rules of Evidence (FRE) now permit certain types of electronically stored information as self-authenticating.
Still, attorneys can face challenges getting their evidence admitted if they fail to implement the right collection strategies—or, even worse, delay their collection efforts until after serving subpoenas, issuing requests for production, or taking other procedural information-seeking steps during discovery.
Page Vault’s executive vice president of customer solutions, Patrick Schweihs, knows this firsthand. He consulted for high-end fashion brands and lawyers for nearly a decade on cases involving web content collection, and now at Page Vault he helps legal clients make the right kind of captures for their needs. I recently spoke with him to learn more about what admissibility hurdles and collection-related challenges lawyers can expect when collecting and working with web captures for legal use.
What types of issues should attorneys expect opposing counsel to raise and what obstacles could they face with those types of responses?
Once a web capture is challenged, it’s up to that attorney to authenticate the evidence. Judges need to know not only if the correct tools were used, but also who did the capture, where it was saved, whether the individual who captured it is still with the firm, and whether subpoenas are necessary to ensure authentication.
Once a challenge is made, there’s a lot that needs to take place in order to authenticate the capture. Captures made with Page Vault already have this needed metadata—freeware, shareware, and non-legal capture tools will not document this. If your capture software doesn’t collect this metadata, then depositions, affidavits, and declarations can all come into play.
How have recent changes to the FRE affected the admission of electronically-stored documents?
Less than a year ago, the FRE were updated and two new sections were added to FRE 902, which deals with self-authenticating evidence.
Rule 902(13) treats records generated by an electronic process that produces accurate results as self-authenticating. Page Vault’s software falls into this category. Rule 902(14) covers copies of web pages or other electronic information. That rule addresses the issue of whether, for example, a hard drive copy holds the same weight as the original hard drive if you can produce hashing documentation, affidavits, or declarations from someone with expertise in that field. These new rules favor systems that allow you to produce accurate results, hashing documentation, and affidavits or declarations for captures—which Page Vault’s established methodology provides.
What risks, if any, do you think attorneys face during electronic collection if they decide to send out requests for production, requests for admission, or cease and desist letters before actually starting to collect this data?
When an attorney makes a request to the other side for web content, especially social media content, the parties on the other side are now aware that this content is potentially advantageous. Their initial reaction is usually to eliminate the ability for the attorney to obtain that information. This can take the form of deleting content or changing account privacy settings to prevent others from viewing content. It’s also likely that they’re going to stop posting online. It’ll be much more of an uphill battle to obtain that information, especially if you could have collected that content prior to making those requests. When I advise clients, I tell them to collect the website or social media content before reaching out to the other side.
Is there any way you can retrieve content that has disappeared, become private, or deleted?
There is way to obtain historical web content, and that’s by leveraging the Wayback Machine. Wayback Machine is a non-profit organization that’s existed for more than 20 years, and their mission is to create a historical archive of the Internet. As part of that initiative, the Wayback machine goes out and collects copies of web pages constantly, so there might be a chance that the site you want has been saved there.
That being said, you will have a slim chance of finding deleted or hidden social media content on Wayback Machine. For example, if you wanted to find an individual’s deleted Facebook account, those are not stored on Wayback Machine. In contrast, if there’s a website that’s changed over the years, there’s a better chance that Wayback Machine will have a copy. You’re still at the mercy of Wayback Machine in terms of what it collects on its own prerogative, but there’s a reasonable chance that something exists to be captured. Page Vault regularly collects this archived content from the Wayback Machine.
Is there an equivalent to Wayback Machine for social media content?
There is not. Wayback Machine is the only player in the historical internet space. This is a tough lesson for a lot of clients to learn, but once the content is deleted or made private on social media, your chances of getting it are very small.
How cooperative or uncooperative have you found social media providers, data hosting providers, and related companies to be during the collection process?
The social media platforms—with Facebook being the biggest—will generally not comply with civil subpoenas. The reason for that is the Stored Communications Act, which protects companies like Facebook from handing over private communications such as messages, timeline posts, and photos. It makes sense that Facebook fights civil subpoenas; it wouldn’t be in Facebook’s best interests to comply because at the end of the day their clients—their users—would not want them to do that. This often comes up when content disappears online, and attorneys believe their next best step is to subpoena Facebook to get that information even though it’s deleted. That, however, is not a viable solution.
Based on your experience, what would you say the split is for how much electronic evidence would come from social media versus from websites?
There are certain practice areas that depend on social media more, and others that rely on web pages more. Practice areas such as insurance defense, family law, workers’ compensation or, employment law lend themselves to social media, while other practice areas like intellectual property, mergers and acquisitions, or corporate law would be more focused on websites, webnews pages, and news story captures.
How early should attorneys start collecting evidence?
My advice is to collect as soon as you see the information live. It’s unfortunate, but I have conversations with attorneys and clients on a fairly regular basis where they’re asking for content that disappeared. Only bad things can happen if you wait to make a capture.
This article has been edited since its original publication.