Social Media Algorithms Foster Relevant Evidence in Litigation

By John Patzakis
November 16, 2021

Recently I participated in a webinar on technology and politics sponsored by USC Center for the Political Future. I mostly managed to steer clear of the political discussion and instead provided my take on the legal and regulatory developments impacting the social media platforms. Apart from the interesting dialogue, I found the discussion on the dynamics of social media and politics to provide some important insights on the proliferation of social media eDiscovery.

Fellow Panelist Morteza Dehghani, an Associate Professor of Psychology at USC who also has a computer science background, offered some good analysis into the psychology motivating social media users seeking to have an impact with their content. There is a mental reward of sorts when your Facebook post or Tweet gets hundreds of likes or retweets. It provides that instant gratification of engagement that you simply don’t experience with email. And the more engagement your post receives, the more the algorithms introduce and prioritize it in other people’s feeds. This leads people to make more provocative statements not only relating to politics, but in other topics as well.  Quite often, interesting and engaging social media posts are often also interesting to lawyers if that social media user happens to be involved in litigation.

As a key example, according to the Global Network of Extremism and Technology, which is tracking the criminal prosecutions arising out of the January 6 Capital riots, 82% of the filed criminal indictments contained some type of evidence from social media, with 52% of the complaints presenting the individual’s own social media posts as evidence against them and an additional 30% presenting others’ social media content to identify and charge the defendants.

The same dynamic applies to civil and regulatory matters as well. Somebody who may been involved in an accident claiming injury may seek sometime later to spur engagement with their Facebook network by posting about their surfing escapes in Hawaii. Similarly, an expert witness, to draw attention and publicity, may make controversial statements on Twitter related to research in their field. And the same goes for corporations that are eager to promote their brand and engage with potential customers, or executives who seek to pump their stock. Banal, generic social media posts simply do not generate the level of engagement that more provocative posts do. Again, there is a big difference here with email, where generating engagement and more followers is not the goal.

So we can see why social media discovery efforts can clearly make the difference in, or at least greatly assist your clients’ case, especially if one moves quickly and proactively at the outset of the litigation, or even a claim at the pre-litigation stage. And this is no longer lost on legal experts and the likes of the American Bar Association and State Bar Associations who draft ethics rules governing attorneys general duty of competence. The New Hampshire Bar Association published Opinion 2012-13/05 providing that lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.”

It is also consistent with our discussions with many of our service provider partners who use X1 Social Discovery on a daily basis, on behalf of their law firm and insurance company clients. The smart practitioners who understand this and embrace social media and website discovery are getting ahead by providing their clients a very powerful and effective service. In some cases, they are single handedly winning cases for their clients.