A new case comes into a law firm. Attorneys for the defendant conduct preliminary social media research on the opposing party to find any online information which could impeach the plaintiff’s credibility and claims. The attorneys spot the plaintiff’s inactive LinkedIn profile as well as a current Facebook profile. But the Facebook profile is private, so they are unable to view any of the plaintiff’s timeline posts. They conclude that there is nothing to be gained by further social media investigation. Yet one of the attorneys, in an abundance of caution, decides to hire an investigations firm to verify the lack of relevant information identified through the preliminary social media investigation.

Time and time again, this is how a social media investigation gets started. While the circumstances may differ – a client may be trying to locate a witness, or identify witnesses to an incident underlying a legal dispute, or discern conflicts of interest – the end result is often the same. By scouring social media such as Facebook, Instagram, Twitter, LinkedIn, TikTok, Reddit, and even shopping sites such as eBay and Amazon, the investigator, using a skillset developed over years of experience, identifies, preserves, and potentially authenticates online profiles and posts that were overlooked in the preliminary investigation. Often, it is the evidence obtained through the additional social media investigation that can make or break a case.

Here’s where the investigator has an advantage: Online users often assume because their profile is private, they don’t have to worry about employers or opposing litigants seeing their posts—even those of a questionable nature. Even if an attorney advises their client to update their privacy settings for their online profiles, the profiles of their family and friends often remain public. Consequently, even if the subject of an investigation assumes a post is private, it remains public through the subject’s friends’ and family’s public profiles. Individuals can also have multiple Instagram or Facebook profiles, which they set up using slight name variations to post material that they do not want their family or employer to see. An investigator can identify these multiple accounts, as well as relevant social media posted in a different language. 

Advice from the Field

The timing of a social media investigation is critical. It should be conducted at the very beginning of any case for preservation purposes, before the adverse parties begin to delete incriminating posts and scrub their profiles. Once relevant social media has been identified, the investigation is not over: Without proper authentication, the identified material may not be legally admitted into evidence.

To satisfy the authentication requirement, the party introducing the social media evidence must establish, first, that the evidence was obtained from the purported social media site, and second, that the evidence originated from the purported account owner. To satisfy the first requirement, courts have allowed investigators to testify in court as witnesses to establish that the evidence is actually from the purported social media site. The investigator can testify that she downloaded the content, describe the appearance of the download that she made from the website, and identify the exhibit as that download.

Satisfying the second prong of the authentication requirement is often more difficult, and circumstantial evidence may be needed to establish authenticity. By tracking the social media evidence’s origins and collecting as much information about the purported author’s social media presence in general, the investigator can help demonstrate that the evidence corresponds with the distinctive quality of the author’s social media, thus increasing the likelihood of success in admitting it into evidence.