See No Evil: Unlocking the Power of Video Evidence in Discovery

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Tech giant YouTube boasts two billion monthly users spanning over 100 countries and a mind-boggling billion hours of video content viewed each day. In fact, only Google is visited more times a day than YouTube, and the last 12 months of quarantine has increased viewing times. Every minute, over 500 hours of user- and enterprise-generated content is uploaded to YouTube and the volume is only increasing. 

With the ever-present video functionality on smartphones and increasing clarity of the video they produce, YouTube and Vimeo and a myriad of other video sharing platforms and social media platforms are also now rife with real-time livestreams and videos documenting everything from the mundane to the catastrophic. Increasingly, video hosted on these websites is being mined for critical video evidence in civil and criminal cases. The former barriers to including video evidence (cost and complexity of managing the video data in review) have been greatly reduced, and this wealth of potentially relevant data is increasingly prominent as a result. 

Not-so-new kid on the block 

YouTube and other video sharing platforms are far from new. Founded in 2005 and acquired the following year by Google, YouTube is the 800-pound gorilla in video sharing and boasts annual revenue north of $15 billion — with some individual influencers on the platform raking in north of $50 million annually ($160,000 a day).

Critical moments in culture have all streamed across YouTube’s airways. Two notable events served as the inspiration for the creation of the site. Janet Jackson’s wardrobe malfunction at the Super Bowl and the Indian Ocean tsunami both in 2004 were viral moments, but the founders of YouTube had a hard time locating video of either event in the unstructured abyss of the early 2000s internet. YouTube’s inaugural video, Me at the Zoo went live on April 23, 2005 and now boasts over 158 million views. 

Initially limited to just 100 MB videos, interest and video size both grew exponentially with the 2006 Google acquisition. Today content spans the gamut from cooking shows to full-length films, user-generated content to stuff from the biggest Hollywood studios. YouTube generates nearly $7 billion in ad revenue a year. 

Lockdown means logged on 

Lockdown has been good for business because consumers have turned to the video streaming giant to fill the gap caused by social distancing. Unlike other streaming platforms like Netflix or Disney+, YouTube relies on users from those with a handful of subscribers to millions to create content and then searches for policy violations after the fact. This loose approach to regulation of content has certainly exposed the organization to criticism and misuse of the platform. It also means that people by the millions are uploading potentially relevant video content each and every day. 

via YouTube

Danger Zone

Over the decade and a half since its inception, YouTube has faced a myriad of critiques ranging from copyright infringement and peddling conspiracy theories to darker things like violence and sexual exploitation of adults and minors alike. In recent years, cell phone videos have captured pivotal moments that have reshaped society for better or worse. 

Legions of content moderators are bombarded by questionable material every day and strive to pull down violators, but the sheer volume and at times depth of depravity has even driven former moderators to sue for emotional distress! It is no surprise that the volume of gory and questionable content is on the rise — unfortunately that content gets clicks and advertising revenue and can even go viral

Wrangling the video dragon 

User-generated content on platforms like YouTube, Vimeo, and the various social media platforms can be instrumental in drawing attention to human rights abuses, used as evidence of a crime, or can itself pose concerns about copyright infringement or defamation. Including this evidence source in your ESI scoping is critically important and as with any other alternative media suture there are some key steps to take to include this digital continent as an evidence source in your case. 

Whether you are looking to use video evidence as character evidence or direct evidence of a crime, the content must meet the threshold of admissibility: 

Relevance

As with all emerging ESI sources (Slack, Clubhouse, TikTok, etc.), the first step in determining the admissibility of YouTube evidence is demonstrating relevance to the issues in the case. While there is ample precedent and case law to support the inclusion of social media ESI (even stuff that is private) in a discovery request, the requesting party still has an obligation to meet the requirements of FRCP 26(b) and demonstrate relevance to the case. And the bar for relevance, Federal Rule of Evidence 401 is far from high. Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” To ensure that this does not become a fishing exhibition, the court will often limit subject matter and duration of admissible ESI. 

Authenticity

As with other flavors of new or social ESI, authentication that the account and material posted to it were generated by the custodian or named account owner and or if the subject of the video is the person in question is a key consideration in admissibility. As with relevance, the bar is not terribly high. Federal Rule of Evidence 901 states to establish authenticity, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it” and this done via presenting the “distinctive characteristics” of an account according to 901(b)(4). These characteristics may include account name, photos of the account owner, nicknames, IP address, specific topics, or slang. Judge Paul Grimm summed it up best as: “If it looks like a duck, waddles like a duck, and quacks like a duck, it must be a duck.”

Once the video has been admitted as potential evidence there are some additional considerations in inclusion in your digital evidence analysis: 

Gaining access

Even in the event the video is still actively being hosted on the video sharing platform, it is important that the video is collected using appropriate forensic collection technology to ensure that all relevant account metadata is preserved along with the video itself. From an authentication standpoint, information like date and time of upload, account information, and even IP address may all be impactful to a case. In the event the video in question was deleted recently, you may be able to have counsel directly request a copy from YouTube, but time is of the essence as these deleted files are unrecoverable after a period of a few weeks.  

Time and cost to review

Historically, it was often time- and cost-prohibitive into video evidence because the cost of converting the media to a reviewable format was high and then the amount of billable time it would take to review tends or thousands of hours of video rendered the effort untenable. Luckly, with today’s AI-powered tools like DISCO, every frame of audio or video content is transcribed and converted into a format that can be searched, categorized, and analyzed for words, phrases, and voice identification. AI can make connections across thousands of hours of video that would have previously been impossible. 

Deep fakes

Deep fakes are AI-generated content where real people do and say fictional things, and their quality is nearly indistinguishable on the face from real authentic video. Thankfully, digital forensic experts can identify certain things that are a dead giveaway that a video has been tampered with including: 

  • Lens distortion
  • Color filter array (CFA) artifacts
  • Noise level and pattern anomalies
  • Compression artifacts
  • Editing artifacts

Has video killed the email star?

With high-resolution video cameras in every person’s smartphone and an increasing number of content creators, video content is only becoming more relevant in litigation and investigations. Thankfully AI and improved parsing technology are making the review of large volumes of video data much more manageable. Savvy and early preservation of all the metadata necessary to authenticate YouTube data combined with application of digital forensic expertise to rule out deep fakes will empower legal practitioners to make the most of this wealth of potentially relevant evidence. 

Check out the rest of our blog series on unusual data types:

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