Snapchat for Litigators

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Snapchat for Litigators

Snapchat: it’s not just for kids anymore. Snapchat has grown quickly since its launch in 2012 and now has more active users than Twitter, coming in at more than 150 million each day. That’s why lawyers, especially litigators, need to familiarize themselves with this social media platform since it could potentially provide valuable evidence in your next case.

If you’re not already familiar with Snapchat,t he app allows people to send photos and videos to others, but the pictures self destruct within seconds of being viewed. Users can chat in the app and add filters or doodles to their photos to make them more entertaining.

So why should Snapchat matter to lawyers? Because as people interact on Snapchat, they leave a trail of digital evidence that could be relevant to your client’s litigation matters. And this isn’t simply supposition. Snapchat has already reared its ugly head in court, in both civil and criminal matters, on many occasions.

For example, in California, a minor was placed on probation following a hearing on a juvenile delinquency petition wherein it was alleged that he violated Penal Code s. 647(j)(1) by engaging in the unauthorized invasion of privacy by disseminating Snapchat videos of another youth who was allegedly masturbating in a bathroom stall. (See, In re M.H., 205 Cal. Rptr. 3d 1 (Ct. App. 2016).

In another case, two Salem, Massachusetts teenagers were convicted following a jury trial of sexually assaulting a 16-year old girl who was intoxicated and then sending Snapchat videos of the assault to their friends. Although the videos had been automatically deleted from the recipients’ phones seconds after they’d been viewed, screenshots were taken by one of the witnesses before the deletion occurred. Those screenshots were later used as evidence at trial.

Snapchat evidence has also proven useful in civil litigation matters. One particular Snapchat feature is cropping up often in personal injury litigation: the “speed filter” feature. This feature, if activated, tracks how fast someone is traveling when a photo is taken and sent to others via Snapchat.

For example, one case in which this feature is taking center stage is in a lawsuit filed in April 2016 in Georgia against Snapchat by a man who was involved in a motor vehicle accident in which he was severely injured. He alleged that the other driver was traveling more than 100 mph and was using Snapchat, and its speed filter feature, immediately before the accident occurred. According to his attorneys, the lawsuit was filed against Snapchat since they believed that the other driver had an insurance policy with very low limits. However, had the lawsuit also been filed against the other driver, the alleged Snapchat speed filter evidence would no doubt have been useful to establish the speed at which she was driving at the time of the accident.

In other words, whether it’s a civil or criminal matter, this increasingly popular social media app has the potential to affect your litigation cases. That’s why it’s important to both understand how this social media app works and how to obtain data relevant to your case from Snapchat. The good news is that Snapchat has published a Law Enforcement Guide (online: https://www.snapchat.com/static_files/lawenforcement.pdf) that covers the ins and outs of requesting data from Snapchat, whether made pursuant to a subpoena, court order, or search warrant. The types of data that can be obtained via these means includes text-based chat conversations, since these are not automatically deleted after being viewed, and photos of videos sent via Snapchat that have not yet been opened and viewed.

So, the bottom line is that if you’re a litigator, Snapchat should definitely be on your radar. Learn about it and don’t overlook it as a potential source of evidence. In some cases, it could very well be a goldmine, providing a crucial piece of evidence that just might make your client’s case.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].