ABC’s 60 Minutes aired an Anderson Cooper-led interview with Stormy Daniels regarding her alleged affair with Donald Trump that took place eleven years prior to his election into the Oval Office. The alleged affair was not the hero of the interview, though. Instead, the focus was on the rumor of a cover-up and subsequent legal action.
In short, this is a scandal that may never see a day in court for various reasons and legal issues, but one unexpectedly interesting nugget emerged. Amidst the allegations, the he-said-she-said accusations, and the lawsuit filed, it turns out that there is a controversial, $130,000 non-disclosure agreement involved that has the return of social media assets as one of its terms.
With Ms. Daniels using the alias “Peggy Peterson,” or “PP,” and Mr. Trump as “David Dennison,” or “DD,” the NDA was dated for October 28, 2016, ten years after the alleged affair, and just eleven days before the election that would make Mr. Trump President of the United States. Section 3.1.c. of this Agreement states:
“(c) PP shall deliver to DD every existing copy of all tangible Property. PP shall completely divest herself of any and all artistic media, impressions, paintings, video images, still images, e-mail messages, text messages, Instagram message, facebook posting or any other type of creation by DD. PP shall transfer all physical, ownership and intellectual property rights to DD;”
photo source: Scribd
When asked by Mr. Cooper if she had such items in her possession, Ms. Daniels said that she was advised by her attorney not to answer that question.
Why Is This Noteworthy?
This might be the first time social media discovery / disclosure has been brought up in the periphery of the White House. While Obama has been called the first “Social Media President,” it is universally agreed that he used it well. President Trump has actively leveraged Twitter as a communication platform, but his Tweets have mostly resulted in screenshot fodder for news outlets, and not much else.
From an eDiscovery perspective, social media can be one of the more difficult elements to capture on the web. While a rudimentary method such as a screenshot might suffice in small claims court, when it comes to a higher-level need, such as a corporate case, or the Oval Office, an elevated standard would be required. A true forensic collection needs to dig deeper to collect and preserve intricate web elements, like metadata, interactive content, and embedded links, to be able to deliver the evidence in a native format, legally defensible way that would hold up in Court.
When collecting social media for eDiscovery, there are some additional factors that come into play, beyond the native format. To begin with, what is actually collectible? The short answer is that anything publicly posted is fair game. But when discussion turns to a restricted page or direct message communication within a platform, it gets a little more complicated. Here, a witness will usually have to be compelled by the court to provide login credentials, and then the collection can ensue, if you have the proper tools.
Another unusual aspect to this case is the language used in the NDA. The word “property” is used to describe Social Media elements, such as a post. While “property” can be both tangible and intangible (such as intellectual property), the question of actual ownership of social media is a big one. Who holds the rights to the posted material? Is it the account owner or the platform administrator? Should Zuckerberg be a named party? Also, can one actually “divest” oneself of something like an Instagram message? Perhaps the example in this case is simply just a poorly-written agreement, but if it were to be escalated to court, the Judge would have some work to do regarding interpretation.
Finally, the actual demand for the return of social media elements may be short-sighted. What would be done if they were handed over? The easiest assumption would be the intention to destroy them. But is that even possible? We have all heard that once something is out on the Internet, it lives forever. While this may be a broad statement, it is true that anything on the web has the possibility of a copy existing somewhere else. A traditional Cease and Desist or Order for Destruction is only effective to a point, because the actual elimination of the content may be out of everyone’s control.
Real World Meaning
Chances are, this scandal will die down. But it is a great reminder to always be prepared. Large cases involving social media discovery happen every day, and an effective tool is required for capturing the necessary information in its native format so that it can be presented in a legally defensible way.
Hanzo is the “gold standard” for eDiscovery collection and preservation for social media. Fortune 100 companies and Law Firms around the world rely on the Hanzo Platform to consistently deliver quality, relevant content with dynamic context that stands up to the test.
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