We live in a world where people walk around with phones that have more computing power than the Lunar Lander. A recent case highlighted the importance of how data on these devices can enter a lawsuit.
In US v Davis, Instagram photos were used to help demonstrate a conspiracy between the Defendant and others to “lure a victim who posted jewelry for sale on Craigslist to Oakland for the purposes of robbing her at gunpoint.” United States v. Davis, 2014 U.S. Dist. LEXIS 24750, 6-8 (N.D. Cal. Feb. 24, 2014) (the case involved a bail study).
Photos from the Defendant’s smartphone include pictures “pistol, assault rifle, bundled and banded U.S. currency, U.S. currency displayed on a bed and a diamond ring.” Davis, at *7. Based on all the facts presented, the Court decided in favor of detention for the Defendant.
Bow Tie Thoughts
This case is an excellent example of how social media photos can enter a criminal case. The same could be said for civil litigation.
Every civil litigator should add questions about social media usage to their interrogatories, requests for production, and deposition. This is not to conduct a fishing expedition, but if there is a PI or workers comp fraud case, it is a good idea to find any Instagram photos posted to Tumblr of the injured party riding a mechanical bull.
The next step is ensuring the data is properly collected. Instagram is interesting, because photos can be saved to the phone, backed up on the computer, in the app on the phone, and on Instagram’s website. Each has different collection methodologies, so it is important to know what you want, such as just the photo, or the post on Instagram with related comments.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.