Today at the monthly HSBA Litigation Section meeting, the Section's Chair Mr. Elijah Yip of Cades Schutte gave a presentation titled "Use and Discovery of Social Media Evidence." Mr. Yip's discussion provided a useful primer on an interesting subject that will likely be confronted more and more in litigation. The legal issues surrounding social media have also been addressed on appeal -- and will likely continue to arise.
Regarding the use of social media, Mr. Yip noted that evidence obtained from social media sites (like Facebook, LinkedIn, Twitter, and MySpace) can be used to (1) prove facts, (2) establish inconsistencies to impeach credibility, and (3) preserve the state of the facts. For example, status updates posted on a social media site can be used to show inconsistencies between testimony or a party's claims.
Information from social media may be obtained through both informal research and formal discovery. Informal research would include, for example, a Google search. The results of the internet search can then be used as a launching point for further social media research and/or formal discovery. Through formal discovery, attorneys can find out what's out there (for example, determining through discovery the social media sites used, full URL site addresses, whether the site is protected and, if so, the credentials to enter the site). Two potential problems that may arise are that the natural state of the information is on the computer and judges may be unfamiliar or not understand the nature of social media. If appropriate, and allowed by the court, attorneys may consider bringing a laptop to court and going through the process at the hearing.
The scope of discovery may also be limited. Generally, many courts have concluded that there is no reasonable expectation of privacy in the information on social media sites -- even if public access is restricted or limited. However, courts do require a factual predicate to look beyond what is available to the public -- i.e. to allow discovery beyond the closed internet door. An attorney needs to know the anatomy of the particular social media site and think in terms of what information is available and what specifically is needed. Examples of laying a factual predicate include using inconsistencies between claims and information available to the public on the social media sites and factual predicates arising from oral deposition testimony. Nevertheless, discovery requests still cannot be too overbroad -- for example, requesting any and all information from a person's Facebook page or the names and addresses of all Facebook friends.
Subpoenas to the social networking entities will often not be answered. The primary roadblock is the Stored Communications Act. The Act prohibits entities from disclosing 2 primary categories of information: electronic communication services and remote communication services. Courts have found that social media sites -- like Facebook -- are both ECS and RCS sites, or both. Therefore, the entities often refuse to disclosure under a civil subpoena. The notable exceptions are if the user provides consent to disclosure or if the information that is requested is not "content" - though that term is not defined in the statute. An example of content is a message status update. However, the date the status was posted or the facts of the post may not be content.
Court are also struggling with how to authenticate social media discovered material. Traditional rules of authentication should apply, including the use of direct or circumstantial evidence. For example, showing that the name, picture, or birthdate on the profile is the same as the witness may insufficient without corroborating evidence that ties them together.
Mr. Yip's handout is available here.