It is no secret that the internet continues to be a daily part of life, interwoven into many of our important and not so important experiences. As a result, the practice of accurately preserving web-related content is growing within the legal field. Preservation of this information is necessary for both due diligence on a matter as well as for use as evidence in court. According to Page Vault’s 2018 e-Discovery Trends report, there are best practices that top litigators use when it comes to web content collection. Litigators who were surveyed work in a vast area of the law including intellectual property, personal injury, insurance fraud, class actions, employment law and general litigation.
Factors to Consider
While Page Vault’s full report contains more detailed data, an article on Lexology.com notes the following items that all practicing lawyers should pay attention to:
- Constant-changing behavior of online content causes potential risks – it is not uncommon for web content to have been edited, or even removed, when an attorney returns to the page. Indeed, 80 percent of those surveyed had this exact experience. Attorneys also later realized discoverable evidence was missed due to their unfamiliarity with the website or its platform;
- Complex web content results in admissibility concerns – collection of complex web content has increased by as much as 43% since 2017. Issues litigators face when trying to discover entire websites and/or videos include proper collection and maintaining the evidentiary chain of custody, among others;
- Metada collection about online content is crucial – best practices include collecting key metadata regarding web content to verify its authenticity no matter how the content is used for the case. Important metadata includes IP addresses, time stamps, geolocation data, social media time stamps, and HTML source codes;
- Use of search engines – the survey showed that almost 90% of litigators use a search engine first (think Bing or Google) when looking for information on a case. These types of investigations can likely produce different closely related information.
Keeping Up with the Web Matters
Page Vault’s report focused on the trends for online content preservation in the legal field. Topics covered included admissibility issues and concerns, investigation and research methods, types of content collected by litigators, where relevant content is hiding on the internet, documentation practices for collecting metadata, and practices when collecting content that is potentially dangerous. If you or a colleague deals with online content on a regular basis in regards to discovery in clients’ cases, it is important to learn as much as possible to ensure you are protecting your clients’ rights and advocating properly for their position.
