“I Can’t Believe It’s Not Live!” Why Native-Format Web Archives Make for Persuasive Evidence

| March 19 2019

Every litigator yearns for that Perry Mason moment, when we calmly introduce the critical evidence that abruptly changes the course of our trial. Our dog-loser case transforms, as if by magic, into a rock-solid winner winner chicken dinner.

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There’s a way to make that happen more often: by finding, capturing, and using evidence that your opponent created but thought you didn’t know about.

What? Where?

Online, that’s where. It might be a Facebook post, an Instagram picture, a tweet, or a comment on someone else’s social media. It could be a YouTube video, a remark on a Reddit thread, or even an online review of a product, service, or establishment. Whatever it is, it’s your opponent’s own words—which are next to impossible to rebut or disclaim. There’s a wealth of terrific evidence online that you could be using to persuade your jury. Much of that evidence is admissible, relevant, and potentially case-breaking … but there’s a catch.

Most attorneys—and we’re talking here of the small vanguard of technology-forward attorneys who've already embraced the concept of looking for evidence online—are stumped when it comes to how to present that evidence in court. Websites and social media are plenty persuasive when you’re looking at them online, but how do you translate that evidence to a courtroom-ready format? And what do you lose if you don’t?

To answer that, let’s consider what attorneys need.

 

The Power of Persuasion

To win their cases, attorneys need more from their evidence than mere admissibility. Sure, evidence needs to be relevant, and authentic, and helpful, but even that isn’t enough.

Your job as an attorney is to convince the jury or the judge. To make them believe your version of events—or, more to the point, to show them your view of what happened, in a way that they’ll feel compelled to believe.

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In a word, attorneys need evidence that’s persuasive. Persuasive evidence is colorful, rich, and believable; it aligns with our understanding of the world. Ideally, it should be corroborated by other evidence. And it should be not conclusory but, rather, layered, first establishing basic facts and then building on those facts, drawing the factfinders to a natural conclusion rather than simply telling them that conclusion.

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Online evidence has the power to check all those boxes. When you establish that a social media profile belongs to an accuser or opponent, and you can show what that person really said, judges and juries instantly understand and believe your evidence. When you stack enough of that evidence together, it can make the difference between winning and losing.

Instead of telling you, though, we’ll show you—with a recent example.

In Experience Hendrix, LLC v. Pitsicalis, No. 17 Civ. 1927 (PAE) (S.D.N.Y. Nov. 27, 2018), the plaintiff moved for sanctions against selected defendants for their alleged spoliation of evidence. One of those lost evidentiary sources, the plaintiff argued, was a computer that had formerly been in the defendants’ possession. And how did the plaintiff know about that computer and convince the judge of its existence?

By using a picture from the defendant company’s Facebook page that showed its president sitting in his office, “in immediate proximity to the desktop computer” in question.

Question: how can the defendants now credibly deny possession of that computer?

Answer: they can’t.

That’s not to say the defendants here didn’t try, but their efforts were unavailing. They did claim to no longer have the computer, after acknowledging that they had never reviewed it for discoverable evidence. The court noted that, without the computer, it was “impossible to determine its contents conclusively.” Yet it found “ample circumstantial evidence supporting the inference that it likely contained at least some responsive materials.” As they say, a picture is worth a thousand words, and this picture depicted an evidently functional computer “situated in a location where [the company president] engaged in the very business conduct at issue in this litigation.”

The court wryly noted that the defendants were “at liberty to disprove the relevance of the computer’s contents—presumably by retrieving it and demonstrating forensically the absence from it at all relevant times of responsive materials.” Without that demonstration, however, the court found that the defendants had intentionally spoliated evidence and imposed harsh sanctions as a penalty.

That picture was obviously persuasive evidence—but it was also fairly static evidence, once its context on the defendant company’s Facebook page was established. Much of what’s on the internet, by contrast, is inherently complex and non-static, like videos, social media conversations, and links to other content. With that in mind, let’s turn to another example, where the lack of dynamic, navigable evidence made all the difference.

Static Evidence Doesn’t Tell the Whole Story

In 2013, in Derbyshire, U.K., a woman accused Danny Kay of rape. He fiercely denied the accusation, arguing that their sexual encounter had been entirely consensual; they had even, he said, exchanged friendly messages afterward.

Law enforcement painted a different picture, and it used Kay’s own words to do it. Kay and his accuser had indeed messaged one another after the attack, the police said, but in those messages, Kay apologized for “hurting” her. Case closed. Kay was convicted by a jury and sent to prison; what better proof of his guilty act than an apology after the fact?

Except that the jury never heard the whole story.

It turned out that the accuser had carefully edited her message history before providing it to the police. When the complete conversation came to light, those “messages showed [that] jurors were given an ‘edited and misleading’ picture of their conversation.” Yes, the jury read Kay’s message apologizing for “hurting” his accuser, but with the deleted messages restored, the full conversation showed what he was truly apologizing for: briefly “ignoring her” in their conversation.

If Kay had been able to present a full, navigable version of those Facebook messages at his trial, he likely wouldn’t have spent years behind bars waiting for the truth to come out.

With static evidence, you have only one view of a situation, and that view might not show the whole story. It’s the same as a printed page, unchanging and devoid of context.

By contrast, when you have dynamic web evidence, you can navigate through how a site looked when it was live. You can show exactly how social media conversations unfolded in real time. You can demonstrate how the context for a specific statement developed. You can click on links to see who “liked” or commented on a post.

Kay went to prison for lack of dynamic evidence. Are you willing to risk missing evidence because you only see a static, “printed” version of it—or of one party’s representation of that evidence?

By its very nature, the web is not static. It doesn’t translate well to paper. Think about it: when is the last time you printed a website? Go on, try it right now. Use this blog. Print it out and grab it off the printer, or save it as a PDF.

Okay, now try to click a link. Like this one about how to print a webpage.

So, how’d that work out for you? How does the video embedded on that linked page look when you print it out? Oh, wait, that’s right: you can’t tell, because links don’t work when you print websites. (Spoiler alert: videos don’t, either.)

If that video was your evidence, or if you want to show how this page links to that one, good luck demonstrating that evidence with a paper-based “website” archive. PDFs are no better, since they also reduce the rich, persuasive evidence on the web to a limited, single-moment-in-time view.

With Native-Format Archives, Your Jury Won’t Believe It’s Not Live

There is a better way to preserve websites for use in court, a way that doesn’t degrade evidence or omit its context: native-format archiving using WARC (Web ARChive) files. With WARC archives, you’ll almost believe that you’re on the live site—and so will your jury. You’ll be able to present colorful, interesting, persuasive evidence, perhaps even in your opponent’s own words, and you’ll be able to show the complete context of that evidence. You can click through links, expand conversations, explore comment histories, and paint a complete picture of who said or did what when.

Static vs. Dynamic Archives 2.0

 

PDFs and printouts just aren’t a defensible way to capture or present online evidence. Don’t miss out on the rich, persuasive evidence available online because you don’t know how to find it or collect it. Contact us today to see how we can help you identify—and use—native-format online evidence to persuade your next jury.

 

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