The Easy Guide to. Preserving Online Screenshots as Evidence. Presented by webpreserver.com

Transcription

1 The Easy Guide to Preserving Online Screenshots as Evidence Presented by webpreserver.com

2 p-2 Contents

3 p-3 TRADITIONALLY THE COURTROOM AND DISCOVERY PROCESS WERE DOMINATED BY HARD COPY EVIDENCE, CROSS-EXAMINATION AND EXPERT ANALYSIS. THE OF DIGITAL CONTENT FROM WEBSITES, SOCIAL MEDIA AND BLOGS HAS COMPLICATED THE DISCOVERY PROCESS DRAMATICALLY AND HAS PRESENTED CONFUSION OF STANDARDS AND ADMISSIBLE EVIDENCE FOR JUDGES AND LAWYERS ALIKE. In an era of electronic evidence, ediscovery is the process in which data is sought, located and secured for use in legal proceedings. The manner in which the collection, preservation, and validation of digital evidence from the internet and social media occurs may be integral to the outcome of a case - but how can you ensure your digital evidence is admissible in court and not thrown out - along with your time, money and, often, entire case? Litigators and law enforcement officials that engage with this new form of digital evidence are faced with many challenges. Collecting large amounts evidence from the internet puts a serious strain on resources because the process can be complicated and time consuming and costly. Evidence collected from the internet must also be authenticated and failure to do so may lead to the evidence being deemed inadmissible which in turn may lead to losing the case. There is also the additional pressures for litigators of having duties to preserve potentially useful information at the risk of spoliation sanctions, to adhere with best practice standards, due diligence on lawyers to provide the best representation possible, and for federal agencies and governments to properly monitor and regulate illegal online activity. Courts may also be overzealous in their demands for production of such evidence - resulting in costly discovery processes, expert analysis and sanctions for some parties who fail to do so. ediscovery can be simplified and legal evidence secured - when using the right tools. This is why WebPreserver was created.

4 p-4 EVEN WITH THE ACKNOWLEDGEMENT OF THE IMPORTANCE OF ELECTRONICALLY STORED INFORMATION [ESI] BY THE JUDICIARY, WHEN USING CONTENT FROM THE INTERNET AS EVIDENCE IN COURT, MERE PRINTOUTS OF SCREENSHOTS ARE REPEATEDLY DEEMED AS INADMISSIBLE (MOROCCANOIL VS. MARC ANTHONY COSMETICS, F.SUPP.3D, 2014, UNITED STATES VS. VAYNER, 2014 WL (C.A. 2 (N.Y.)). VERIFICATION OF AUTHENTICITY IS REQUIRED. WebPreserver is an essential ediscovery tool that addresses all the problems currently facing those attempting to collect, preserve, and authenticate content from websites and social media. From litigation support, legal professionals to law enforcement officials - with a single click WebPreserver software can capture evidence, download and share it and includes additional security features of e-signatures and timestamps. WEBSITE, BLOG AND SOCIAL MEDIA CONTENT AS EVIDENCE The internet is no longer a secondary resource for research and gathering information of potential use to a case. The use of blogs, websites and social media is part of daily life - from socializing, communicating, professional networking and, unfortunately, illegal activity for some. As a relatively unmonitored domain of images, communication and records it is a limitless resource of after-the-fact information. Content from social media and websites can be the main focus of a case or used as contributory evidence, with the ability for images and text to carry probative or conclusive value to the outcome of the case. Yet despite all the benefits and undeniable relevance of digital content in the courts a definitive obstacle, amongst many others, remains; how can one ensure that this evidence will be deemed admissible? FEDERAL RULES OF EVIDENCE Lorraine v. Markel American Insurance Co. 241 F.R.D. 534[2007] succinctly transposed the context of evidentiary rules to be considered when assessing ESI; focusing on the relevance of evidence to the case, authenticity, ensuring content is not merely hearsay (unless subject to an exception) and whether the probative value of the ESI is outweighed by unfair prejudice. AUTHENTICATING ESI One of the bigger obstacles in creating legally sound evidence from the internet is due to the need to authenticate it. Due to the unique nature of this content, data can easily be altered after creation. Federal Rule of Evidence 901(b)(3) sets a relatively high bar of authentication, stating it is judged by [appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. Rule 901(b)(4) also allows authentication through circumstantial evidence.

5 p-5 So whilst digital evidence does not require new rules of evidence, circumstantial evidence is required, and circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium, (State of Connecticut v. Eleck [2011]). WebPreserver software and features were designed with this in mind - providing an e-signature and time-stamp on every snapshot as circumstantial evidence. FROM A LEGAL PROFESSIONAL POINT OF VIEW The legal profession has changed dramatically in recent recent years with the introduction of technology into both daily lives and the courtroom. Statistics and common sense indicate that the presence of social media related cases is on the increase - at a rapid pace. According to Westlaw, in 2014 roughly 5,500 social media related cases played out in the courts - a three-fold increase from As only approximately 1% of filed cases are accessible online, it could be assumed that hundreds of thousands more cases, both civil and criminal, involved social media during this time period. Civil cases using digital evidence include divorce, family law, employment disputes, contract, defamation, trade-secrets, insurance, intellectual property, tort, discrimination and much more. Criminal instances include fraud, harassment (both online and IRL), child exploitation, sexual assault, violation of probation, gang involvement, possession of firearms, acts of terrorism, drugs - and sadly more. Discovery has long been one of the more tedious aspects of litigation, often consuming much of a firm s resources and a client s assets, with the input often outweighing the result. Vast developments in technology have both aided and added to this process, by adding to the burden of data to examine, utilise, and also archive for potential litigation. WebPreserver operates with ease, efficiency and resourceful; simplifying the discovery process, saving time and providing forensically sound evidence from online content. PROBLEMS FROM A LAWYER S PERSPECTIVE Due Diligence Lawyers have a due diligence to provide an ethical standard of representation to each client, taking into consideration all ethical elements within the profession. With the advances in technology, this due diligence must reflect that, and so lawyers are faced with the need to not only legally represent, but to be technologically savvy in how they do so. [1] Caselaw states that there is a [L] awyer s duty to Google as part of due diligence. [Munster v. Groce (Ind. App. 2005)] and that [I]t should now be a matter of professional competence for attorneys to take the time to investigate social networking sites, [Griffin v. Maryland (Maryland Court of Special Appeals, May 2010)]. If a lawyer fails to properly utilize the internet and social media in legal proceedings and discovery, then this acceptable level of care is not met. [1] responsibility/publications/model_rules_of_ professional_conduct/rule_1_1_competence.html

6 p-6 Best Practices There is a duty to manage information responsibly in conformance with relevant and best practice standards. The American Bar Association has recently published Comment [8] to Model Rule 1.1, stating that a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology [2] ; this means utilizing the internet and social media and making all feasible efforts to partake in the ediscovery process of a case. Lawyers simply relying on printouts of screenshots (State of Connecticut v. Eleck, Commonwealth v. Banas, United States v. Vayner), or who fail to produce evidence in their native file formats, run a high to inevitable risk of having evidence disallowed, and a case lost or thrown out. Duty to preserve A defensible response to litigation starts with reliable evidence. When sensitive information is compromised, so is a case, and so it is critical to ensure electronic evidence is handled with precision and care to prevent it from being overwritten, destroyed, or otherwise corrupted. WebPreserver archiving facilities secures a firm s case and a client s information so the burden is taken off the litigator. Threat of spoliation Spoliation of ESI and digital evidence is a consistently onerous task for litigators (Lester v. Allied Concrete Company), considering the ease at which failure to preserve content in the likelihood of being relevant to future litigation can result in a sanction. Due to the nature of data found on the internet and social media, content can be easily altered or deleted, and so a litigator must ensure that (i) this does not occur and (ii) they can provide authenticated, original evidence when required. To negligently preserve potential evidence or fail to do so could likely result in a sanction of adverse instruction and monetary punishments. Cost As mentioned previously, the discovery process of a case can often be a drain on resources, with a firm s litigation support and lawyers often spending unnecessary amounts of time trawling through social media accounts and websites for evidence, capturing, organising, and searching for circumstantial evidence in support of their findings. With single click capture, instant download, an online sharing platform and the added benefits of a time stamp and e-signature - this changes the entire discovery process and speed and quality of a case. For some jurors the presentation of a mere screenshot can be so lacking that expert analysis is necessary in support of its authentication. When this occurs, the financial cost of expert analysis and potential cost to the outcome of the case can be unduly burdensome, and not always worthwhile. WebPreserver services authenticate your evidence so an expert won t have to. [2] responsibility/publications/model_rules_of_ professional_conduct/rule_1_1_competence/ comment_on_rule_1_1.html Order to compel Once a motion to compel discovery is issued, a party must bear the burden of production even if no evidence of bad faith exists,

7 p-7 according to Federal Rule of Evidence s duty to disclose. This can be costly, cumbersome and confusion still exists regarding the limitations on ESI to be produced. Evidence does not have to be produced by a party when they can show that the source is not reasonably accessible because of undue burden or cost, however, the court may order discovery if the requesting party shows good cause. The court must limit the extent of discovery allowed if content produced is unreasonably cumulative or duplicative - or can be obtained by some other source that is more convenient, less burdensome or less expensive. Social media and websites are an easily accessible goldmine of evidence - and so parties utilising WebPreserver technology are armed with a tool to avoid the burdens accompanying these motions.

8 p-8 : THIS WAS ADDRESSED IN THE RECENT CASE OF FEDERICO V. LINCOLN MILITARY HOUSE [2014], WHERE A MOTION TO COMPEL DISCOVERY WAS ORDERED FOR MORE POTENTIALLY RELEVANT SOCIAL MEDIA DATA BUT THE PLAINTIFF CLAIMED THEY WOULD NEED A FORENSIC EXPERT (AT A COST OF $22,000), AND IN THE END ONLY DUPLICATIVE EVIDENCE WAS PRODUCED. THIS EXCHANGE ILLUSTRATED THE DIFFICULTY THE COURT WILL INEVITABLY FACE IN TRYING TO ACHIEVE THE PROPORTIONALITY REQUIRED BY RULE 26(B)(2)(C) IN ELECTRONIC DISCOVERY OF SOCIAL MEDIA. [3] [3] The Plaintiff s inability to produce social media data resulted in a sanction of $29,000 ( to deter further noncompliance ) and also for attorney s fees ($65,000). By failing to collect and produce social media data in a timely manner, the Plaintiff incurred costs of almost $90,000. FROM A LAW ENFORCEMENT POINT OF VIEW Digital forensics has always had a strong association with the investigation of crime. Unmonitored websites and social media accounts provide a haven for those engaging in illegal activity; from fraud to gang-related crime, harassment, drug-dealing, violation of parole, child exploitation and far more. Although there is an onus on individuals to engage wisely with how they use the internet, authorities and law enforcement have a duty to ensure regulation and enforcement of internet security, to monitor such occurrences and properly engage with people who don t do so. Criminal cases currently dominate social media related case law. These websites provide bountiful amounts of incriminating evidence for law enforcement authorities; from the blatantly obvious posting of firearm and drug possession on Instagram, online harassment via Twitter and Facebook, to the many examples of child exploitation across a multitude of platforms. These images, posts, chat logs and tweets can assist in investigating an incident, create a clear, authentic picture of the facts at hand and aid in launching an effective response. When utilised correctly, law enforcement authorities can build a strong portfolio of evidence in a short amount of time. This is aided by the fact that as technology advances, more social media platforms are gaining popularity and provide more resources for those looking for evidence. In Pew Research Center s most recent survey they refer to a phenomenon labelled The New Social Media Matrix. 52% of online adults now use two or more social media sites - a drastic rise of 10% from the previous year. It is therefore

9 p-9 easy to understand how evidence from these websites needs to be collected and authenticated by law enforcement officials to ensure that those in more vulnerable positions are not exploited, harassed or taken advantage of online. WebPreserver s compatibility is not just restricted to social media, but blogs and websites too. Evidence taken from websites can often the foundation of criminal activity - and so to ensure that this content is secured and authenticated before a guilty party has time to alter or delete it is essential for law enforcement authorities. Similarly, Metadata from Twitter provides a dimension of information beyond the content, including geolocation of tweet and the privacy features of the account used. When using Metadata in discovery, litigants should also request the ESI be produced with any corresponding Metadata; WebPreserver therefore provides a secure, complete set of data and evidence. Metadata, is a hidden but integral part of the ESI that records the modification of data, including edit history, deletions, time of creation and far more. With such detailed amounts of information it is easy to see why courts would request the production of native format metadata. Judge Winmill stated; [A]lthough Metadata is not addressed directly in the Federal Rules of Civil Procedure, it is subject to the same general rules of discovery..that means the discovery of metadata is also subject to the balancing test of Rule 26(b)(2)(C), which requires the courts to weigh the probative value of proposed discovery against its potential burden. (AtHome Care, Inc. v. The Evangelical Lutheran Good Samaritan Society No.) Metadata found in content from social media can be integral in linking criminals to activity online. Facebook Metadata identifies recipients of message (by name and user ID), the application used to post to Facebook, the date a post was created, revised or updated and, importantly, geolocation of posts.

10 p-10 WEBPRESERVER IS AN ESSENTIAL AND INNOVATIVE TOOL IN EDISCOVERY, EVIDENCE CREATION AND ON-DEMAND ARCHIVING OF DIGITAL CONTENT DESIGNED FOR THE NEEDS OF LEGAL PROFESSIONALS, LITIGATION SUPPORT TEAMS AND LAW ENFORCEMENT AGENCIES. THIS EASY TO USE SOFTWARE CAPTURES, STORES AND AND AUTHENTICATES DIGITAL CONTENT FOR USE AS EVIDENCE IN COURT - ENSURING EFFICIENT EDISCOVERY AND A SECURE ARCHIVING SYSTEM FOR ALL LEGAL REQUIREMENTS. WEBPRESERVER FEATURES: With the simple, efficient use of a plug-in, single-click snapshots are created instantly from websites, blogs and social media - and saved in digitally signed and authenticated PDF and WARC formats for future use. Prepare files for litigation by storing and organising snapshots of digital content into personal folders, with tools such as keyword tagging, folders and an internal search engine. Snapshots can be downloaded to your computer - but also easily shared and files collaborated with clients, colleagues or others online via this user-friendly platform. Once captured, your snapshots are further authenticated with a digital signature and timestamp in compliance with the E-Sign Act, Federal Rules of Evidence and other degrees of regulatory compliance - creating a strong form of evidence for all litigation purposes. You can easily export to your favorite ediscovery tools such as EDRM/XML or Concordance. No fumbling, no stumbling all your documentation just works.

11 p-11 BENEFITS OF USING WEBPRESERVER authorities considerable amounts of money in consultation fees as well as time. WebPreserver is a forensically sound method of collecting, preserving and presenting legal evidence. The use of WebPreserver helps to mitigate risk through proper identification and preservation of digital evidence taken from websites, blogs and social media. The internet is an asset integral to the future of litigation, and ediscovery tools must be fully equipped to meet the needs of litigators in utilizing it in the most efficient, secure and effective way possible. WebPreserver provides a tool for both sides of litigation to preserve evidence likely to be of use to future or current cases, archiving content at risk of being edited, deleted or tampered with, fulfilling a duty to preserve evidence and protecting parties against spoliation sanctions. WebPreserver focuses on maximum authenticity with minimum effort. With single-click capture and instant archiving, this software takes minimum training for litigation support, saves considerable amounts of administrative time and resources and helps to build up a case of authenticated evidence in just a few clicks. WebPreserver snapshots ensure compliance with legal standards and requirements, such as the e-signature act and Federal Rules of Evidence, so the need for expert analysis and testimony isn t necessary- saving firms and

12 p-12 For legal professionals and law enforcement authorities to shy away from utilising the internet and social media to create evidence in litigation would be detrimental to a functioning legal system and fair trial. WebPreserver is an essential ediscovery tool that addresses all the problems currently facing those attempting to collect, preserve, and authenticate content from websites and social media, solves these problems and provides a unique service essential to the future of litigation. Do you need to preserve Web and Social Media content as legally admissible evidence? With WebPreserver it s as easy as one click! Simply browse to the Page or Post you want to preserve, click our plugin button and voila that content is preserved in WebPreserver s online vault. You can easily manage, retrieve, share, print on demand or export to other Ediscovery tools via your private WebPreserver account page. All your documents are archived to the highest standards such as 256-bit digital signatures and timestamps - PageFreezer Software Inc. (WebPresever s creator) are leaders in the Online Archiving industry with over 500 Government, Multinational, Finance and other critical industry clients. Best of all you can rest easy knowing that any Online content you preserve will be fully compliant with all regulatory requirements such as the E-Sign Act and Federal Rules of Evidence - Your case preparation will be a snap! Start Preserving Web Pages and Social Media as Legally Admissible Evidence Today GET THE PLUGIN NOW & START YOUR FREE TRIAL!

13 p-13 DISCLAIMER This document was created to provide information about a specific issue. This document does not take a position on any specific course of action or proposal, nor is it intended to endorse any particular vendor or product. Every effort has been made to present accurate and reliable information; however, PageFreezer assumes no responsibility for consequences resulting from the use of the information herein. COPYRIGHT PageFreezer Software Inc., This document, and any portion thereof, may not be quoted, reproduced, copied, disseminated or otherwise distributed without the express written permission of PageFreezer Software Inc.. PageFreezer Software, Inc Water Street Vancouver, BC V6B 1B8 Canada Phone: [email protected]