Whether you’re documenting infringing intellectual property activity online or collecting social media pictures and posts relevant to a fraudulent insurance claim, having the right electronically-stored evidence (ESI) can help bolster your case. This is because cases often hinge on the quality and availability of the ESI you collect. Parties that are made aware of apparent or imminent litigation have a duty to preserve all relevant evidence. The sanctions for intentionally or accidentally deleting this evidence are specifically designed to discourage foul play. For example, parties who fail to preserve relevant evidence under the Federal Rules of Civil Procedure Rule 37(e) can face remedial measures, adverse jury inferences, court-issued sanctions, or even outright dismissal.
While these rules in theory should deter opponents from deleting unfavorable online evidence, this doesn’t mean your opponents will always act ethically. All they need to do is delete posts or clean up their websites and social media profiles to keep you from using this data in future litigation. This can be a serious problem when collecting online evidence, especially if your opponents remove this unfavorable information using processes that are difficult to document.
While the largest social media companies often cooperate with federal authorities in criminal investigations, many of them have successfully used the Stored Communications Act (SCA) to defeat civil subpoenas requesting the production of user data. It’s also often either difficult or impossible to retrieve deleted data from social media platforms.
Instagram, for example, vaguely states that it “retains different types of information for different time periods,” and only cooperates with state and federal law enforcement agencies regarding preservation requests. On Facebook, deleted profiles are permanently removed from Facebook’s servers within 90 days, while deleted groups, messages and comments are irretrievable. Website hosting providers also usually put complaining parties in touch with website owners to directly resolve legal issues on their customers’ websites, or advise parties to initiate Uniform Domain-Name Dispute-Resolution Policy (UDRP) or court proceedings instead.
Unfortunately, there are limited tools that can help document evidence that’s already deleted—especially on social media websites. While the Wayback Machine can be useful for finding data about previously-published activity on websites, it cannot pull information from individual social media pages, and only sporadically collects screenshot data from standard websites.
This is why it’s crucial to start collecting the evidence immediately once you become aware of potentially-suspect activity.
Taking authenticated captures of social media and website pages before you send a cease and desist letter is a best practice to protect yourself from foul play. This is because authenticated captures can provide time-stamped, easy-to-follow evidence documenting your opponent’s activities online.
Recent changes to the Federal Rules of Evidence (FRE) have made it even easier to admit this type of evidence into trial. Under FRE Rule 902 (13-14), evidence that’s either collected using electronic processes such as screenshotting or stored on electronic storage mediums is considered self-authenticating. This means that attorneys no longer need to call witnesses to testify on the authenticity of electronically-collected evidence, so long as the evidence supplied is accompanied by certifications of individuals qualified to attest to the evidence’s authenticity. Web capture tools and services designed for legal authenticate their web captures with hash-value matching, which uses algorithms to determine whether a capture is an identical copy of its original data source.
So if you’re considering mailing a cease and desist letter, make sure that you have already fully documented the recipient’s infringing, libelous, or otherwise illegal activity. Acting now to collect all online evidence will save you from avoidable litigation headaches down the road.
This post was authored by Eric Pesale, a legal contributor who writes regularly about legal topics for law firms, publications, and companies as the founder of Write For Law. He is a graduate of New York Law School and the University of North Carolina at Chapel Hill, and has been published in the New York Law Journal and Above the Law. Eric can be reached at eric@writeforlaw.com or on Twitter at @writeforlaw.
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