Law Technology News had a couple great articles this week regarding the state of law and social media. The first was about a Pennsylvania court that opened the door to discovery of social networks. The second article concerned the ethics of advising your client to make their social networking private. Of course, the ethical discovery of information from social networks is not a settled – far from it. As a colleague of mine aptly stated: inconsistency is the rule.
And more than the article itself, it really drives home that Web 2.0 is here to stay and its effects are being felt in all areas and practices of law. As if things weren’t unsettled enough when it comes to law and technology issues, foursquare, Facebook and Twitter only make the muddled waters murkier. From ‘friending’ judges to the admissibility of evidence from Facebook and MySpace, it seems like new legal issues involving social media spring up daily.
Yet, many attorneys remain utterly clueless when it comes to even basic e-discovery issues, let alone dealing with evidence from social networking sites. I went to a lecture last month where less than half of the room knew what ESI was – and there were over 120 attorneys in the room. That’s kind of scary! If attorneys don’t know what electronically stored information is, how are they supposed to be able to utilize this wealth of evidence to zealously defend their clients?
Obviously, not every case will involve evidence from a social network. However, I have already seen this type of evidence used in employment law, personal injury, family law, and criminal law cases. The bottom line is that there is a wealth of information online and it can be found and used ethically at trial if the right steps are taken.
So should you advise your client to change their privacy settings to protect certain information? Like any legal question – especially one involving technology – it depends. It depends on your jurisdiction, at what point in the case you are, and your client’s privacy settings. So think about all the facts and do some research before you make this decision.
In regards to the discovery of this information, it appears that courts will generally treat information on social networks as being more public than email and other ‘private’ two-way communications. This commentary on a recent California case Crispin v. Audigier comes from Doug Cornelius of the Compliance Building blog:
The judge found that webmail and private messages are inherently private and quashed the subpoena for those messages. With respect to the subpoenas seeking Facebook wall postings and MySpace comments, the decision will be dependent on the person’s privacy settings and the extent of access allowed. If the general public had access to plaintiff’s Facebook wall and MySpace comments then presumably they are subject to discovery in civil litigation.
And can you already imagine how foursquare will be employed by attorneys? Foursquare is a location-based social networking website, software for mobile devices. In early 2010 a site known as Please Rob Me was launched. Please Rob Me ‘scrapes’ data from public Twitter messages that have been pushed through Foursquare. While the name sounds nefarious, the stated purpose of the website is to raise awareness about the dangers of revealing too much information online.
Here are further resources I have compiled for you: