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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

The Next e-Discovery Frontier

Burgeoning growth of online social networking has created a huge repository of information about individuals and organizations that attorneys may find useful in litigation.  By the same token, those who frequent social networking sites should be circumspect about what information they share and how broadly they define their circle of friends.

Experienced attorneys know that embracing new technologies—such as social networking sites—can make the difference between winning and losing cases. While once relegated a pastime of tech-savvy college students, social networking sites such as Facebook and MySpace are now ubiquitous and an important weapon in any litigator’s arsenal. Social networking sites are a key source for information regarding many aspects of litigation, including claims and defenses, expert and lay witnesses, jurors, opposing counsel, and judicial officers. For a variety of reasons and from a variety of perspectives, attorneys should utilize social networking sites as part of their litigation plans.

Rise of Social Networking

In order to understand the importance of social networking sites as a litigation tool, attorneys first need to understand the magnitude of their use. In 2009, time spent on social networking sites for the first time surpassed time spent on email.1 As of September 2009, Facebook’s user base exceeded 300 million users and is now “nearly as large as the U.S. population[.]”2 Almost three-quarters of those active online in the United States are involved with social networking sites.3

Social networking sites are now widely recognized to be a key source of information regarding a person because “[a]lthough these sites provide users with a sense of intimacy and community, they also create a potentially permanent record of personal information that becomes a virtual information bonanza about a litigant’s private life and state of mind.”4 It is telling that every candidate for a high-ranking position in President Obama’s administration had to disclose social networking sites featuring the applicant in a personal or professional capacity.5 In any given litigation, chances are that opposing counsel, witnesses, potential jurors, and even the judicial officers maintain a presence on one or more social networking sites.

Facebook and MySpace are the two most popular social networking sites. Both are freely accessible websites in which users can join networks and groups, interact with the public or only with persons they have designated as “friends,” send private email messages, issue public notices or status updates, and post photos and videos. Review of the statistics is compelling. Both Facebook and MySpace were launched in 2004. Facebook has more than 300 million active users who have an average of 130 friends on the site.6 Each month, Facebook users upload over 2 billion photos and 14 million videos.7 MySpace has nearly 125 million active users.8

Most social networking sites, including Facebook and MySpace, enable individual users to control whether their information is private or public and to whom it can be disseminated. How accessible information shared on social networking sites is to a third party ultimately depends on the security settings set by each individual user. The security settings range from uncensored, public profiles that can be accessed and located through the social networking site or any internet search engine, to private profiles, accessible only to persons designated as friends.

Litigation Tools

Attorneys are using social networking sites as litigation tools in various ways, including the following:

  • to investigate lay and expert witnesses;
  • to prepare for depositions;
  • to vet prospective jurors;
  • to investigate opposing counsel and judges;
  • to tailor closing arguments and trial strategy.

Particularly in high-profile cases that may involve extensive jury-selection processes, attorneys should use jury questionnaires to ask whether potential jurors have profiles set up on social networking sites. Trial consultants regularly use internet research as a means of vetting prospective jurors and learning information jurors may not reveal on jury questionnaires or during voir dire, “including how they vote, how they spend money and if they’ve spoken out on controversial issues.”9

For example, in a multimillion-dollar civil action in Ohio, plaintiffs’ counsel discovered that a member of the jury pool listed his status update on Facebook as “sitting in hell ‘aka jury duty[.]’”10 The juror’s status update was discovered because the juror belonged to a 238,000-person Cincinnati, Ohio Facebook network. The judge removed the juror from the jury pool.

Attorneys can also use social networking information to tailor their openings and closings. “For example, a lawyer discovered from a person’s MySpace page that [that person’s] favorite book was The Seven Habits of Highly Effective People, and found a way to subtly include that reference into his closing arguments.”11 A jury consultant likewise explained that “[i]f you find that someone is a member of an environmental group, or believes in a charity, you might use analogies to gain sympathy for your client[.]”12

Not only attorneys use social networking sites during litigation. A Texas state court judge recently detailed the many ways in which she has used Facebook in connection with her job, including discovering comments attorneys have written about proceedings in which they were appearing before her, many of which exposed improprieties and unethical conduct.13

Informal Discovery

Attorneys can discover social networking information through both informal and formal means. Informally, attorneys can discover social networking information regarding individuals by conducting searches on an internet search engine, such as Google, or on the individual social networking sites. The amount of publicly available information that can be uncovered depends upon what social networking site the person uses and the security settings the person has activated on the site, if any.

For example, if a person’s Facebook account has low security settings, one can locate and access the account and user information by simply conducting an internet search or by searching for the person’s profile on Facebook. Attorneys can discover the user’s postings, list of friends, shared photos and videos, and other valuable information. If a person has heightened security settings, attorneys may still be able to discover the social networking account, but will not be able to access the person’s profile information unless the user provides permission through granting a “friend” request. Even if attorneys can only gather limited information informally, that information can provide a means to tailor subsequent formal discovery.

Attorneys’ ability to conduct informal discovery of social networking information is not limitless, however, and attorneys must remain cognizant of applicable ethical constraints. For example, the Philadelphia Bar Association Professional Guidance Committee has addressed what steps an attorney could ethically take to informally gain access to an unrepresented witness’s Facebook and MySpace accounts.14 An attorney had inquired whether it would be ethical to ask a third person—someone the witness would not recognize—to go to the witness’s Facebook and MySpace accounts and seek to “friend” her, thereby gaining access to the nonpublic information on the witness’s pages. The attorney planned to use the information obtained from the Facebook and MySpace accounts in the pending litigation.

The Professional Guidance Committee determined that regardless of whether the witness may willingly befriend the unknown person, the proposed conduct would be unethical because the information was being acquired through “deceptive” means. The Professional Guidance Committee explained that:

Deception is deception, regardless of the victim’s wariness in her interactions on the internet and susceptibility to being deceived. The fact that access to the pages may readily be obtained by others who either are or are not deceiving the witness, and that the witness is perhaps insufficiently wary of deceit by unknown internet users, does not mean that deception at the direction of the inquirer is ethical.15

The Professional Guidance Committee found that trying to access a social networking site in such a manner was not similar to the common and ethical practice of videotaping the public conduct of a personal injury plaintiff, explaining that in such a situation the videographer does not have to ask to enter a private area to make the video. “If he did, then similar issues would be confronted, as for example, if the videographer took a hidden camera and gained access to the inside of a house to make a video by presenting himself as a utility worker.”16 In short, while attorneys can—and should—engage in efforts to informally locate publicly available social networking information, they should be mindful of the ethical limitations.

Formal Discovery

Nonpublic social networking information can be acquired through formal discovery requests, which attorneys should utilize as part of their overall discovery plan. The applicable federal and state discovery rules apply to information shared on social networking sites. For example, Federal Rule of Civil Procedure 34 and Minnesota Rule of Civil Procedure 34.01 apply to electronically stored information “stored in any medium from which information can be obtained[.]”17 Rule 34 was “intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.”18 Other states have adopted similar rules which encompass social networking information. As of September 2009, 23 states have adopted e-discovery rules which mirror or are similar to the 2006 amendments to the Federal Rules of Civil Procedure.19

While there have been few reported decisions addressing discovery of social networking information, review of the decisions to date provides useful insight into how courts are addressing social networking information and what attorneys need to do to get it. (See Sidebar)

A few key lessons regarding the discovery of social networking information can be gleaned from these sparse but significant decisions:

  • Courts are willing to require users to produce social networking information in response to narrowly tailored discovery requests.
  • Courts are reluctant to compel service providers to provide broad, unrestricted access to social networking user information, but may order production in response to narrowly tailored requests. The privacy policies of many service providers, including Facebook and MySpace, permit the disclosure of user information in response to subpoenas or court orders.20
  • Courts are not receptive to user privacy or privilege arguments when information has been shared on social networking sites, even if the intended audience was limited.

Thus, in order to ensure that relevant social networking information is uncovered through the formal discovery process, attorneys should:

  • Include interrogatories seeking the identification of social networking sites used by a person and all user profiles and accounts.
  • Include document requests seeking production of relevant information maintained or shared by a person on social networking sites, including video and photos.
  • Consider issuing a narrowly tailored subpoena to social network providers. The subpoena should be as specific as possible and reference user profile names, home and email addresses, and time period of activity.
  • Inquire regarding social networking usage during deposition questioning.
  • Address social networking information during pretrial conferences and in protective orders to prevent production delays.

In sum, attorneys should explore social networking sites as part of their formal and informal discovery efforts and case preparation. Just as it would be unthinkable nowadays to conduct discovery without considering what email evidence may be available, attorneys should give the same attention to social networking information to ensure that all smoking guns have been uncovered and addressed.

SHANNON M. AWSUMB is an attorney at Anthony Ostlund Baer & Louwagie, PA, in Minneapolis.  Her practice focuses primarily on business litigation.

One Comment

  1. […] information “kids” make public.  It’s sad, in a way: nearly every article in the local Bar journals on social media is about how to protect yourself from spies or how to use profile pages to nail your opponent in […]

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