The fast pace of social media and the speed at which our attention flies from posts to videos to comments sections can make it seem like a transient, intangible element of daily life. In court, however, social media evidence is held to the same standards as all other admissible evidence. This means anyone responsible for a piece of evidence – a post, message, photo, or profile, for example – must do their due diligence to preserve that evidence and prevent spoliation.
What is Spoliation of Evidence?
Spoliation of evidence is the destruction or alteration of a piece of evidence, or the failure to preserve property that may be reasonably expected to constitute evidence in an emerging case. When it comes to social media, this can look like deleting photos or posts, altering relevant profile information, or deactivating an account (without properly preserving first). If the content of those photos, posts, or accounts has been or could reasonably be established as evidence in a civil or criminal case, failing to preserve them accurately would constitute spoliation.
While the use of social media evidence in court cases is still evolving, it has been established that this type of evidence should be held to the same standards as all other Electronically Stored Information (ESI). The Federal Rules of Civil Procedure 37(e) was amended in 2015 to explicitly state that ESI must be preserved “in the anticipation or conduct of litigation,” or else a person could face consequences in court. A litigation hold can be placed on social media data, and subsequently, it is the responsibility of the person(s) with legal or practical control over that information to preserve it appropriately.
Is Spoliation the Same as Evidence Tampering?
Tampering with evidence is an offense that occurs when a person willfully damages, destroys, alters, or conceals evidence in order to interfere with a criminal investigation. The goal of evidence tampering is usually to avoid prosecution for a crime or imply guilt in another person. Spoliation is closely related, but often specifically refers to the interruption of due process in a civil case.
What is an Example of Social Media Evidence Spoliation?
Destroying or altering content published (regardless of privacy settings) on a social media platform that has been established as evidence by the court or that a reasonable person may conclude would be relevant in litigation constitutes spoliation. Here are a few examples of what that could look like:
- Deleting posts, comments, messages, or profile information.
- Removing published photos or videos.
- Retroactively altering or deleting content created or shared on an account.
- Deactivating an account, without first properly preserving it, in order to prevent access to information.
Preserving and authenticating social media evidence to present in court can be a more complex process than you think (even if you have no malicious intent to destroy information). Read here to learn more about the admissibility of social media evidence in court.
What are the Possible Sanctions of Social Media Evidence Spoliation?
Consequences of spoliation in civil court will depend upon the nature of the spoliation and the specific jurisdiction. Sanctions could include dismissal of the action, fines, attorney fees, judgment in favor of a party, or an adverse-interference instruction. In some jurisdictions, spoliation can be considered an actionable tort for a secondary lawsuit.
An adverse-interference instruction deserves a bit more explanation. This sanction recognizes that if a case law precedent has been set, it may be inferred that a person sought to destroy social media evidence because it would not appear in their favor. The court may then conclude that the evidence in question implies guilt on the part of the perpetrator of spoliation.
So is Spoliation of Evidence a Crime?
It can be. If the act is criminal by statute in a jurisdiction, it could result in a fine or even incarceration following a separate criminal trial. However, in many cases, it will result in the sanctions described above if a relevant case law precedent has been established.
Let’s dive a little deeper into what social media evidence spoliation looks like – and how to prevent it – by taking a look at the case of Lester vs. Allied Concrete Co.
Spoliation of Facebook Evidence: Lester vs. Allied Concrete Co.
Isaiah Lester and his wife, Jessica, were involved in a tragic car accident when an Allied Concrete Co. truck lost control and flipped onto their vehicle. Jessica later passed away from her injuries. The driver of the truck pled guilty to manslaughter.
A year later, Lester filed a civil suit against Allied Concrete Co. on behalf of himself and Jessica’s parents, seeking compensation for monetary and non-monetary losses following the death of his wife. After exchanging Facebook messages with Lester, an attorney for Allied Concrete issued a discovery request for Lester’s Facebook page, including photos, statuses, and messages. After notifying him of the discovery request, Lester’s attorney instructed him to “clean up” his Facebook page and delete certain photos that could “blow up” at trial.
From this, we can infer that Lester’s attorney believed that these images could damage Lester’s case or result in an unfavorable ruling. Lester proceeded to delete 16 photos from his profile, and later on deactivated his account entirely and claimed to have no Facebook profile in court. Allied Concrete received notice of this action and filed a motion to compel discovery. Even after Lester reactivated his Facebook profile, the 16 photos in question remained deleted (though they were ultimately produced in the course of litigation).
The court granted the defendant sanctions against both Lester and his attorney for spoliation of evidence. The jury received an adverse-inference instruction, allowing them to conclude that the Facebook content that the plaintiff deleted would have been damaging to his case. The court also found that Lester and his attorney had violated Rule 3.4(a) of the Virginia Rules of Professional Conduct in attempting to destroy or conceal evidence that had been subject to a discovery request by the defendant. That evidence, of course, was Lester’s personal Facebook profile and published photos.
Ultimately, in addition to the adverse-interference instruction, Lester and his attorney were instructed to pay the defendant $722,000 in expenses and attorney fees. Lester’s attorney was also subsequently suspended from practicing law for 5 years for instructing Lester to obstruct Allied Concrete’s access to evidence.
As we can see in this case, removing, hiding, or deleting social media content to prevent it from being seen in court can have detrimental results. Once litigation became reasonably foreseeable and again (and especially after) Lester had received the discovery request, he was legally obligated to preserve his Facebook profile. This meant that, even though he may have wished that certain information would not appear in front of a jury, he was obligated to ensure that no one threatened that evidence. For more cases that deal with the spoliation of social media evidence, check out this resource.
How Can Spoliation of Electronic Evidence Be Prevented?
If you are recognized to be in control of social media content that will need to be preserved as evidence, you must do your due diligence to avoid intentionally or negligently destroying that property. To do so, you can:
- Use the platform’s built in Download Your Information (DYI) tool.
- Save and print screenshots of evidence.
- Avoid changing information or settings associated with a social media account.
- Stay aware of who has access to the accounts in question, and increase privacy settings if necessary.
- Familiarize yourself with your state and federal rules of civil procedure.
Screenshots of posts or photos are likely not the only information that will be required by the court to authenticate a piece of digital evidence. If you will rely on social media content to win your case in court, it is in your best interest to consult professional social media investigators. These experts can make sure you protect and preserve all metadata and create hash values that will help your case. If you choose to work with Bosco Legal Services, we offer additional legal services to help you achieve a favorable ruling.
Take a look at these California Court resources for more information on social media case law, locating social media (or even fake) accounts, and more. When you’re ready, contact our team to learn more.