Websites and social media pages have become invaluable places to find discoverable evidence. In fact, one e-discovery survey found that 87% of respondents now collect social media data for their cases. Further, 84% of the surveyed attorneys were concerned that their electronic evidence captures don’t accurately depict what they saw on their screens. According to Page Vault’s in-house attorney and Executive Vice President of Customer Solutions, Patrick Schweihs, these issues stem from not using the right tools and strategies to collect social media and other web content from the outset.
I recently sat down with Patrick to get his insights about the most common problems attorneys face when collecting data online. Patrick has extensive experience using web captures in legal proceedings. For years, he helped luxury fashion companies protect their online brands by stopping the sale of counterfeit goods. At Page Vault, Patrick works hand-in-hand with attorneys and businesses across the world to ensure they’re collecting their web content evidence correctly.
What are some of the most common mistakes you’ve seen attorneys make when collecting online evidence?
The most fundamental mistake from a legal standpoint is improper handling of a web capture’s chain of custody. Using off-the-shelf tools that are not designed for legal use to capture evidence is probably the number one mistake I’ve seen in this area.
Another big one is when attorneys wait to perform a collection. The obvious problem with this strategy is that what you see online today can quickly change over the course of time. Because of the ephemeral nature of social media, if someone posts something that’s advantageous to your case, you want to preserve it right then and there.
How does the decision of which tool or software to use during a collection play a role?
The actual tools or software that law firms use to make captures plays a big role. We hear a lot of stories about lawyers and other law firm staff using SnagIt, Adobe Acrobat, or Print-to-PDF to capture evidence just as they would outside of legal—such as saving online recipes or driving directions at home. By bringing this unsuitable approach into legal collections, they’re not really thinking through the ramifications and the pitfalls that they could face when introducing these web captures into evidence. Educating and ensuring lawyers and staff are using the right collection tools is something we see firms trip on quite a bit. Not using dedicated and legal-grade collection tools will also make it difficult for firms to collect web content that meets their legal needs.
The use of incorrect tools can also leave yourself open to missing content. For instance, let’s say you’re dealing with a Facebook profile that’s extremely long. If you need to manually open comments and replies and scroll down to expose more posts, chances are you might miss something important—especially if you’re dealing with a large profile that takes a long time to collect. We also see a similar issue with bigger websites, and we receive more and more requests to capture websites with more than 100 webpages. Once you get beyond a handful of webpages, you really put yourself at risk for missing entire webpages of content without the right tools.
What consequences can attorneys face for not collecting evidence the right way?
The most serious consequence is that your evidence and web captures are deemed inadmissible. When law firms make captures using the wrong tools that aren’t meant for legal use, opposing counsel will recognize this, raise challenges, and often prevail because the law firm performing the captures didn’t do so correctly.
There are also less serious consequences. One step down from this is having or requiring your staff to sign affidavits or declarations, participate in depositions, or testify at trial. Most firms do not want to have their own staff involved in chain of custody issues because those persons have a vested interest in the outcome of the case, putting them in an uncomfortable position.
From a technological perspective, what should web content collections include to ensure admissibility?
The obvious one is the content’s metadata, which essentially means “data about data.” In the context of collecting web content, metadata would include your IP addresses, timestamps, URLs, screen capture software information, user information, and other information. Metadata is available when you’re making web captures, but it’s often forgotten about or not collected every time with everyday screen capture tools. This can cause admissibility issues down the road.
The ability to digitally “hash” the captures you’re making is also important. Through hashing, you’re creating a digital fingerprint for each capture. This means that if the hash value of your screen capture copy matches the one that was generated when the capture was initially made, you know the capture was generated, that there were no modifications made to that screen capture, and that the capture is authentic.
How well or badly do consumer-grade tools meet these technological requirements?
None of the freeware or shareware tools out there are getting all of the metadata you should collect when dealing with legal web captures. Those non-legal tools are not meant for legal users, as the average user who saves recipes or directions doesn’t care about IP addresses and other metadata. It would likely confuse average consumers if they saw that information. That approach is fine for the non-legal community, but it brings significant risk to the legal community because it oversimplifies things and leaves out much of the critical metadata that is required.
What steps can attorneys take to streamline the collection process to avoid legal roadblocks?
First and foremost, it starts with proper planning. Recognizing early on that your case is going to require evidence from the web is step number one. Once you’ve recognized that, then you need to use the proper tools to preserve the web content. When you open up a tool, you’ll quickly know based on features alone if you’re using the correct approach for capturing web content. There are tools specifically designed for the legal community to make web captures defensible and look accurate, so having a legal professional use software and services such as Page Vault is going to help save time and keep their evidence in cases. Page Vault often deals with cases where we find valuable evidence online. If you think of an insurance defense case where a single Facebook post can be a smoking gun, that piece of evidence needs to be handled and collected correctly. The other side will fight tooth and nail to get that evidence tossed, and you cannot afford to have that happen. Having the proper tools, metadata documentation, and chain of custody preservation in place will help ensure this won’t be the case.
Learn more about collecting web content in this webinar: Modern Capture Practices for Admissible Evidence. This expert-led discussion covers:
Admissible Web Content
Ways Legal Professionals Miss Discoverable Evidence
Technical Challenges with Modern Web Capture
Timeliness of Capturing Web Content
Competency of Social Media Platforms
Ethics of Social Media Preservation