1 SOCIAL MEDIA WHERE DID IT COME FROM AND HOW DO YOU GET IT W. Marc Schwartz, CPA/CFF, CFE Most of us are now very familiar with the adage, What goes on the Web, stays on the Web. Stories abound of pictures, stories, videos and any number of other memorializations of youthful indiscretions coming back to haunt people every day. This is particularly true in the bankruptcy setting where our propensity to brag and exaggerate can lead to disclosures that are often quickly and easily discernible by a bankruptcy trustee or others working in the field. The rapid growth of social media has only accelerated and, to some degree, exacerbated this propensity. What exactly is Social Media? The best way to define social media is to break it down. Media is an instrument on communication, like a newspaper or a radio, so social media would be a social instrument of communication. In Web 2.0 terms, this would be a website that doesn't just give you information, but interacts with you while giving you that information. This interaction can be as simple as asking for your comments or letting you vote on an article, or it can be as complex as Flixster recommending movies to you based on the ratings of other people with similar interests. 1 People obtain information, education, news and other data from electronic media and print media. Social media is distinct from industrial or traditional media, such as newspapers, television, and film. Marc Schwartz is the Founder and former Chairman of HSSK Forensics, Inc. a computer forensics firm which is now a subsidiary of Ricoh Americas, Inc. HSSK Forensics operates the first privately owned lab to be certified by the American Society of Crime Lab Directors to handle digital evidence. Mr. Schwartz is also an experienced bankruptcy practitioner having served as a trustee, examiner, accountant and advisor to parties involved in the bankruptcy process since the late 1980s. 1 What is Social Media?: What are Social Media Sites?, Daniel Nations, About.com.
2 Social Media is relatively inexpensive and accessible to enable anyone (even private individuals) to publish or access information, compared to industrial media, which generally require significant resources to publish information. 2 Social Media, as we call it today got its start in the late 1950s when Open Diary was founded by Bruce and Susan Abelson to bring together diary writers. Around the same time the term Weblog came into use, which, the story goes, one jokester truncated into We blog, hence the origin of Blog. The advent of cheaper and more bandwidth, faster computers, storage space and the internet ushered in the modern world of social media, permitting almost anyone to communicate and interact on the net. The following chart will give the reader some feel for the dynamic growth of this phenomenon, showing the growth in Patent applications and grants for social media during the seven years ending in 2010, courtesy of ipwatchdog.com. Social Media is inexpensive and interactive which means everyone who participates has a chance to communicate to the entire viewing world, which means people will and do put anything and everything on a social media site often to their later regret. One of the most important aspects of social media to us is its permanency. What is put Online Stays Online. 2 Kaplan and Haenline, 2010.
3 A recent case can help us better understand what can be found and the dangers of trying to put the horses back in the barn. Lester v. Allied Concrete Co. et al, Circuit Court of the city of Charlottesville, Virginia Case No CL & Case No. CL Plaintiff Isaiah Lester was the widower of 25-year-old Jessica Scott Lester, who died when an Allied Concrete truck rolled onto her car in 2007 Lester sued Allied Concrete Company and William Donald Sprouse, seeking monetary damages for negligence and wrongful death. Throughout the lawsuit, continuous disputes arose over discovery related issues. Specifically, defendants sought the production of screen print copies of Lester s Facebook account, including all of his pictures, message board, status updates, and messages sent or received. Defendants attached to their request a photo of Lester holding a beer can while wearing a t- shirt with the logo I hot moms, which Lester s counsel presumed was taken from his Facebook account. After receiving the demand, Lester s counsel instructed his paralegal to advise Lester to clean up his Facebook because we don t want blowups of this stuff at trial, and the paralegal sent two s to Lester instructing him accordingly. Lester deactivated his account, a fact he later denied at his deposition and during trial, despite evidence that clearly demonstrated that he knew those statements to be false. Lester provided his responses one day after the deactivation, answering the request I do not have a Facebook page on the date this is signed, April 15, Defendants then filed a Motion to Compel Discovery. After consulting with another attorney, Plaintiff s counsel had his paralegal instruct Lester to reactivate his account. Lester did so, but following his earlier instructions from his counsel, he deleted sixteen photos while his counsel s paralegal was printing the screens. Both his attorney and paralegal claim that they were unaware that the photos were deleted at the time they prepared their amended response. The Court found that Lester engaged in the spoliation of evidence citing the fact that..he deactivated his account and claimed he didn t have an account in his original misleading response, deleted the sixteen photos, and lied at his deposition and at trial, claiming that he never deactivated his page or deleted the photos. The Court sanctioned both Lester and his attorney, $180,000 and $542,000, respectively. The Court also referred ethics-based allegations against Lester s attorney to the Virginia Bar.
4 Depending on its relevancy, Courts are permitting the entry into evidence content gathered from social media cites. In the discovery context, courts are allowing access to material on social networking sites provided that the information sought is relevant to the issues and the request falls with acceptable discovery standards. In Romano, the plaintiff in a personal injury case claimed that she had no life as a result of her injuries and made claims for loss of enjoyment of life. Because her postings on Facebook and MySpace were believed to be inconsistent with those claims and because they were necessary to the defense, the court allowed discovery of the postings. 3 From a bankruptcy perspective, social media postings, particularly as it relates to individuals, either debtors or insiders, can be a source of information on assets that can be sources of recovery to the estate. In addition, they can establish relationships which may be critical to unraveling the debtor s affairs. The difficulty can come in obtaining access to this information. Justin Bassett, a New York City statistician, had just finished answering a few character questions when the interviewer turned to her computer to search for his Facebook page. But she couldn't see his private profile. She turned back and asked him to hand over his login information. Bassett refused and withdrew his application, saying he didn't want to work for a company that would seek such personal information. In their efforts to vet applicants, some companies and government agencies are going beyond merely glancing at a person's social networking profiles and instead asking to log in as the user to have a look around. 4 Bassett s response to the request for his login information highlights two important aspects of discovering what is on the web for a particular person or individual. To the extent information is not secured, proving progeny may become difficult, how do we know Bassett really posted that picture of himself on Youtube and not someone else? How do we even know it is a real picture and not photo shopped. Secure login information gives us stronger evidence that the content is real but, in the world of the net, that may not be the case. In Bassett s case, his private site is available to be viewed by his friends, but in the world of the web who really is a friend? By its nature, social media is dynamic, changing constantly. In February of this year LinkedIn reported it had 150 million users and was adding 120 per minute. In April, Twitter reported it handled 340 million tweets per day. Unlike a normal litigation hold, which will freeze electronic and paper files at a point in time, it is almost impossible to do so on the cloud. In addition, where is the content? Most service providers have their own private clouds but the content can be collected from almost anywhere and may in fact be stored almost anywhere. What about mobile devices and information cached on them? 3 4
5 All of this points to the problem in proving that a sound forensic collection has occurred and thus the evidence is admissible if needed. Despite the hurdles, it can be done. If it is expected that the content may need to be admitted into evidence consider the fact that what was probably collected was a copy, not the original. Best evidence has been defined to be The best and topmost form of evidence which can be produced 5. Since in social media cases the best evidence will be a copy, which is all that can be produced. In order to establish its progeny the following procedures should be followed: The collection should be performed under rigorous compliance with computer forensic collection standards with each step clearly documented The documentation that was created to record the actions to make the copy should be produced (remember, heavily document the collection and include detailed contemporaneous notes) The forensic examiner who made the collection should provide testimony to validate the documentation created and the recognition of the documents/sites collected The witness must specify the basis for their recollection of the evidence collected The witness must recognize the copies collected The resulting evidence can be either static copies, such as pictures, or dynamic, navigable pages which can be viewed at trial. Even if not admissible into evidence, social media can identify assets, business ventures, and jobs that debtors may forget to mention to their attorney. Furthermore, social media can disclose changes in lifestyle which may be indicative of changes in circumstances. In non-individual cases, the same disclosures can lead a trustee to identify potential assets that can be a source for recovery of claims against insiders and others where turnover actions are warranted. The process of searching for someone on the web is easy and quick to do, not requiring a lot of investment in time or money but, if there is a payback, it can often be significant. You will be surprised at what people will put up on the web for the world to see. 5
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