As webpages are becoming increasingly important evidence in litigation, so too are the standards for capturing and preserving that evidence. For years, we've seen Internet evidence used to contest disability claims, to prove a spouse's cheating ways, to support claims of trademark infringement. Heck -- even Google Earth is being marshaled in courts as evidence.
Lawyers who want to make use of webpage or electronic evidence might be surprised that simply printing out that incriminating Facebook post, defamatory tweet, or infringing email might not be sufficient anymore. Instead, attorneys need to follow best practices for capturing webpage and electronic evidence in order to ensure its admissibility in court.
Betrayed by the Internet
We could write tome after tome on the ways webpage and electronic evidence have been used in court. There's plenty of disability claims that have been destroyed after someone posts images of themselves practicing archery or learning to belly dance online. We'd be shocked if the recent hacking of the adultery website Ashley Madison -- and subsequent data dump -- doesn't end up as evidence in a few hundred divorce proceedings. Internet and webpage evidence has become common place in personal injury, employment, IP and family law litigation.
But don't assume you can just print out an incriminating webpage and call it a day. At least, that's the message behind a recent webinar hosted by the ABA Legal Technology Resource Center and presented by the web evidence company Page Vault. Some courts have been rejecting simple print outs and screen captures, according to the presentation. That means that practitioners need to adopt more precise standards when gathering and preserving webpage evidence.
Best Practices for Webpage Evidence
There's plenty of ways to capture and authenticate webpage and Internet evidence. You can use a simple printout or screen capture, though these implicate you or your staff in the chain of custody and often require you to collect metadata manually. You can use screen capture software, though these are not often designed with standards of admissibility in mind. Forensic software can be helpful, as can forensic experts, though neither are cheap nor easy. How should you decide between these approaches?
According to the presentation, best practices for capturing webpage and Internet evidence are those which:
- Use Rigorous Standards: Evidence should be captured in a way that would satisfy the most demanding courts.
- Use a Trusted Third Party: This can include forensic experts or software.
- Use Secure Storage: Evidence should be protected by encryption and digital signing and control should be kept over physical copies.
- Capture Source Files: This includes HTML and DOM, the languages that make up websites.
- Capture Webpages Immediately: Content changes and disappears quickly on the Internet, so don't expect it to be there when you return.
- Consider Spoliation: This includes advising your clients against destroying potential online evidence.
- Remember Your Ethics: The Internet is no reason to ignore your ethical obligations, so avoid common pitfalls like communicating directly with represented parties (through, say, a "friend request" on Facebook) or misrepresenting yourself with fake profiles and online accounts..
Follow these practices and your smoking gun should be easily admissible.