Is my DIY social media investigation defensible in court?
Social media investigation defensibility can mean the difference between your data being useful vs. useless as evidence to prove insurance fraud and prevent a claim payout. When you consider the ease and abandon with which social media users distribute the moments from their own lives and the lives of those around them—complete with textual, pictorial, and videographic details—it should come as no surprise that social media investigations have become standard and even mandatory practice for many insurance companies, MedMal carriers, and their outside counsels.
Social media content is discoverable, so it’s completely legal and ethical for insurance carriers, attorneys, or any other parties involved in a legal matter to dig through and collect any public data from a person’s social media accounts to strengthen a case against them. Even private posts and other data can be gathered, though it may require a court order.
However, the process of social media investigations isn’t as simple as taking a screenshot of a person’s Facebook page. Even if you’re able to submit the screenshot as evidence, because it’s a rasterized image, the opposing side could claim that it is doctored and therefore inadmissible. For social media data to be defensible in court, it has to be collected using specific tools, by experts who know how to present the data in a way that eliminates any doubt of its veracity.
Don’t Try This At Home
The only way to guarantee social media investigation defensibility is to have the collection and reporting done by qualified investigators with digital forensic experience and credentials. Not only can they collect information in a forensically sound way that holds up in court, they can also testify under oath, speaking knowledgeably and convincingly about the data in response to cross-examination.
A social media investigation starts with collecting and indexing content from any relevant social media pages associated with the target subject. That can mean collecting data from the opposing party’s personal page in addition to any content or external websites that the page might link to. It is also fair game to search profiles of relatives or friends for any public information they might have posted about the defendant — such as a video of them being physically active despite claiming to have an impairment or injury.
Keep in mind that hacking social media accounts is deemed unethical conduct by the ABA, as is friending or following the opposing party, defendant, plaintiff or jurors. (See ABA rule 5.3: Responsibilities Regarding Nonlawyer Assistance.)
Expert investigators use special tools to capture snapshots, videos and text from posts. In addition, they collect related metadata to provide contextual information, such as the time the content was posted and the IP address from where it was posted. Because screenshots can be altered using Photoshop or other photo-editing software, investigators assign them MD5 hash values, which are unique numbers to verify that the data is in its original form and hasn’t been altered or tampered with. As this data is stored or moved to other computers, the hash values provide a foolproof way of verifying data authenticity. Throughout every step of this process, investigators extensively document their work to provide an extra layer of validation.
In some cases, gathering a defendant’s social media data is just the beginning. If posts link to other locations on the internet where responsive content might be found, investigators will follow those leads to see what they uncover. Any results are then captured, tagged and exported into a document review platform, from which they’re fully searchable.
A Story From Our Experts
In recent years our BIA team has seen social media become an increasingly indispensable source of evidence in legal matters, making and breaking countless cases — many of them involving medical malpractice or insurance fraud. In one recent case, a cheerleader at a national organization claimed that she’d hurt her back severely while working. She’d filed a worker’s comp claim saying her mobility was limited and she could no longer work. However, when the insurance company enlisted our team to do a social media investigation, we were able to prove her claims false.
Although the cheerleader’s own accounts didn’t show anything to undermine her case, when we took a deeper dive into her friends’ various social media accounts, we uncovered a video of the cheerleader twerking on a yacht. By verifying the time, date and location of the video, our investigators were able to prove that she didn’t have the injuries she’d claimed, resulting in dismissal of the case.
If it’s out there, BIA Experts will find it.
Evidence of a defendant’s untruthfulness provided by the defendant themselves, intentional or not, packs a powerful punch to a jury. But to guarantee that this valuable evidence holds up in court, it’s crucial that the eDiscovery process is handled by experts who will employ forensically sound tools and techniques. We’ve got the tools and the experts to run them. Leave your digital deep dive to us and rest assured of your social media investigation defensibility for every case.