Keeping Tabs On Social Media and Web Pages in e-Discovery

Photo by Jason Howie (Flickr/ Creative Commons)

During his trial for second-degree murder, George Zimmerman’s gym trainer described him as a “very nice man, but physically soft.”

After Zimmerman was acquitted, the legal tech company X1 Discovery argued prosecutors missed key evidence that could have rebutted the defense portrait of Zimmerman as a weakling who is unlikely to pick a fight.

On its website, X1 explains: The “gym prominently and proudly advertised George Zimmerman” as someone who was transformed by their training regime. This web page was deleted from the gym’s web site, however, and that’s where X1 claims its Social Discovery product could have helped prosecutors, by preserving this as evidence.

Social Discovery users can use the program to monitor a website, index any changes, and collect that information in a safe spot, so it can be introduced as evidence in a courtroom.

The ephemeral nature of internet is increasingly creating problems in the courts. In 2014, the Harvard Law Review found that 50 percent of all URLs in Supreme Court decisions no longer link to the originally cited information. From the Harvard Law Review article:

Print sources can be kept indefinitely by libraries or archives, assuming space and other determinations allow. The ability to update those original print sources is, for these purposes, happily difficult. Tracking down every original copy of an edition of a printed New York Times and changing a story on page A4 is the stuff of Orwell’s imagination, not real-world practicality. But to do the same thing with an online edition is trivial.

Scholars have already developed names for these problems: Link rot occurs when a URL no longer works and the web page is blank. Content drift happens when a web page moves to a new URL. Reference rot encompasses both phenomena.

In addition to helping lawyers preserve evidence, Social Discovery also aims to help lawyers meet the stringent chain of custody standards needed to introduce the evidence they collect off the web.

Howard Williamson, senior vice president and executive director of Social Discovery, argues screen shots are too easily manipulated and many judges will not allow them to be admitted as evidence for this reason.

In contrast, Social Discovery not only provides an image of the screen, but it also includes metadata that can authenticate where and when a web page was created. “A screenshot does not have that metadata,” said Williamson.

Social Discovery also downloads directly to the user’s hard drive rather than third-party servers.

Customers can choose between two licensing models: Users can pay $1,495 per year, or a flat fee of $2,940 for a perpetual license. Under the second option, users would need to pay a $490 annual renewal fee to obtain web support and software updates.

A little less than a third of the clients are private law firms, according to Williamson. Professional consulting firms represent an equal percentage of the clients, and the remaining clients are law enforcement agencies, he said.

Pasadena-based X1 grew out of Idealab, the start up incubator that produced Picasa, the photo-sharing website that Google purchased back in 2004. X1’s original products fall into the e-discovery realm and are built on the same technology that allows users to keep and search evidence on their own laptop or hardware.

For more thoughts on how the web is changing the law, readers should take a look at New Yorker staff writer Jill Lepore’s article The Cobweb from January, which makes the startling claim that the average lifespan of a web page is only about 100 days.

One of Lepore’s deeper thoughts pertains to the fate of the footnote in the digital era:

The footnote, a landmark in the history of civilization, took centuries to invent and to spread. It has taken mere years nearly to destroy. A footnote used to say, “Here is how I know this and where I found it.” A footnote that’s a link says, “Here is what I used to know and where I once found it, but chances are it’s not there anymore.”