Social networking sites: “Friend” or foe of e-discovery professionals?

Social networking has skyrocketed in recent years. Use of sites such as Facebook, MySpace, Twitter, and LinkedIn, as well as other types of social media such as blogs, has become an integral part of the daily lives of millions of people. Facebook alone has over 500 million users. With that explosion of popularity, it's no surprise that the rise social media is affecting the legal world.

Because people can post just about anything on social media sites, in many cases—whether family law, employment, even criminal law—it is becoming vital to determine, as early as possible, whether clients, witnesses and opposing parties have public profiles on any of those sites. That's why such sites receive more and more requests for information from law enforcement and civil litigants seeking information stored there, such as access to user profiles, information about online users' locations when sending messages, and in some cases, the content of the messages themselves.

In most civil cases, requests for information are subject to the Stored Communications Act (SCA). Accordingly, electronic communication service providers may share basic user account information, such as a username and IP address, but normally cannot release the content of electronic messages.

One of the important issues involved in social networking evidence is admissibility. The Federal Rules of Evidence require evidence to be authenticated before it can be admitted in court. With nearly everyone having the power to create accounts and claim to be someone else, how can one prove the true identity of a username in court?

To help establish authenticity of information gathered from social media sites and intended for use as evidence, testimony from the person who obtains printed screenshots from the social networking web page should be documented, along with details of how and when the pages were accessed and printed.

Also, evidence that the username of a social networking profile or message is actually the author should be presented. You can do this by obtaining admission by the author or testimony of a witness who observed the creation of the online content, by presenting content on the page that connects it to the author, or by stipulation.

Another issue affecting social media data collection is pretexting, a tactic whereby individuals try to get information under false pretenses, such as by creating a fake user account and trying to “friend” another person in order to get access to his or her networking site profile and messages. Pretexting raises ethical questions about contacting and gathering information without full disclosure and consent of other parties, a particular problem if they are represented by counsel.

With social networking becoming one of the major ways people communicate, staying current on the use of social media sites by clients, witnesses, and other parties can lead to crucial findings that can make or break your case.

This article is based on material prepared for “Social Media Data and the Cloud—The Omnipresent E-Discovery Challenge,” one of 17 panels to be presented at the ACEDS Annual E-Discovery Conference, March 23-25, 2011, at the Westin Diplomat, Hollywood, Florida.