Tweets: An Important New Source of Electronic Evidence

Computer Forensics Firms Are Helping Attorneys Preserve and Produce This Increasingly Critical ESI

The Scenario

The Tweet goes out… chip maker Audience is “being investigated by the DOJ on a rumored fraud.”  The result?  The shares of Audience plunge over 25% in a mere few seconds.  The payoff?  Potentially hundreds of thousands of dollars in profits for short sellers.  The problem?   The Tweet was a complete hoax, sent by an impostor using the phony handle @Mudd1waters and the name “Conrad Block”, deceptively similar to an influential short-seller named Carson Block, founder of Muddy Waters, a notable short-selling firm.^[1]

The real Carson Block issued a correction, but the damage to Audience’s stock was already done, and presumably, the short seller’s gains were already in the bank.

The Background

In a world in which 500 million Tweets are sent every day, it’s no wonder Twitter feeds are taking center stage as the newest form of relevant Electronically Stored Information (ESI) for investigators and litigation attorneys.  There are over 240 million active Twitter users, and 32% of internet users are on Twitter. ^[2] This translates into a valuable and emerging new source of digital evidence that is growing at an alarming rate –  Twitter adds a million new users every day. ^[3]  Further, many Twitter users are careless about what they Tweet, and they seem oblivious to the fact that this ESI is discoverable.  The result is a body of evidence that can be not only relevant to a case but can often make or break the outcome.

The Application

Recovered and preserved Tweets are not just valuable in stock manipulation schemes.  Case in point; you may recall it was a defaming Tweet against her former fashion designer that led to celebrity rocker Courtney Love’s $450,000 settlement in that case.

In other cases, recovered Tweets can demonstrate the relationship between individuals working together in non-compete or non-solicitation matters, and can be compelling digital evidence in cases involving employment issues and medical malpractice.

Aren’t Tweets Private?

Not usually.   Most of the Twitter traffic is public, and courts have ruled it is discoverable and should be treated just like any other form of ESI.  In the notable People v. Harris case, Judge Sciarrino had this to say when the defendant’s attorney claimed his client’s Tweets were private…

“There can be no reasonable expectation of privacy

in a Tweet sent around the world” ^[4]

The Take-Aways

• It’s discoverable.  Twitter feeds and other social media posts are discoverable, and new powerful forensic tools enable the rapid and effective collection, preservation, and production of this ESI
• The importance of meta-data.  Can “your IT guys” do this for you?  Well, sort of.  But in high-stakes cases, consider using an expert that can harvest the critical meta-data that resides within Tweets.  The recovery and preservation of this meta-data (times and dates of posts, information about the sender, etc…) can be critical in authenticating the Tweet and providing the necessary evidential integrity.
• Speed can be important.  Social Media ESI can be fleeting, and defendants have been known to try to “clean-up” their social media accounts by deleting accounts or removing damaging information.  So if you believe Tweets or other Social Media information may be helpful to your case, preserve it before you file your suit.