The Use of Social Media in Legal Proceedings John K. Etter*

Social media – internet sites such as Facebook, Twitter, LinkedIn and other specialized platforms – have fundamentally changed how people interact with each other, not just personally, but also for businesses.  Facebook has over 500 million users, and the average user interacts with 130 people at any given moment (and whatever figures are here are outdated by the time you read this!)  On the day Michael Jackson died, over 140 million “Tweets” (messages that individuals post to Twitter sites) were sent by users.  LinkedIn, a more business-oriented site, has over 100 million users.

In light of the rise in usage of these social media network websites, legal issues have arisen regarding the privacy of the content shared on these sites, the admissibility of such content as evidence, and whether lawyers are allowed to obtain such information.

The recent CLE of Louisiana conference, held July 8-13, 2011 included a panel discussion on the issues relating to obtaining content from social media sites for use in trials.  While the panel discussion focused specifically on child custody and other family law cases, the practicalities  discussed by the panel have applicability for a range of legal cases, including contract litigation, patent claims, product liability cases, and even violence in schools and businesses.  The discussion was focused around three questions, as summarized below:

1. Is There any Privacy in Information Sent on Social Network Sites?  Each social network website includes a “privacy statement” that all users must accept when they sign up on the site.  The statements are lengthy and most users do not read them.  Generally the policy’s state that any information present on pages with a privacy filter set to “everyone” is publically available information and is accessible by anyone and may be redistributed across the internet.  Facebook in particular states that it “may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law.”  Generally courts have extended the notion that there is no reasonable expectation of privacy in any information or things exposed to the general public to the social media context.  The panel cited Independent Newspapers, Inc. v. Brodie, 996 A.2d 432 n3 (Md. 2009), where the court noted that “[t]he act of posting information on a social networking site, without the poster limiting access to that information, makes whatever is posted available to the world at large.”

1. Is Evidence from Social Media Network Sites Admissible? According to the panel, case law has not quite settled the question of whether information obtained from social network sites is admissible evidence.  However some attempts have been made.  In United States v. Drummond, 2010 WL 1329059 (M.D. Pa. 2010), for example, the court determined that photos from a criminal defendant’s MySpace page, obtained by the prosecutor, were relevant.  However the court did not raise the issue of authenticity.   Further, in Maldonado v. Municipality of Barconloneta, 2009 WL 636061 (D. Puerto Rico, 2009), the court noted that “a Facebook message raises issues of hearsay.”

1. Can Lawyers Obtain Evidence from Social Network Sites?  With the internet increasingly becoming the first source for information on people, companies and issues, “Googling” a potential client, or opposing party seems standard practice.   But is using social media connections to obtain access to an opposing party’s Facebook or LinkedIn page acceptable, and is the information you might learn there admissible?  The panel discussion focused on family law issues, where postings on Facebook could provide evidence of financial capability (e.g., a trip to the Bahamas by a parent claiming poverty) or child endangerment (e.g., photos of a parent playing with guns with the children).  Louisiana courts will generally admit Social Media evidence in custody and other family law matters, where there may be a reduced evidentiary standard, especially if there is evidence of abuse.

Similar issues arise in civil suits surrounding acts of school or workplace violence, and many commercial litigation cases.  Are postings on an employee’s Facebook page about work environment or corner cutting admissible on their own, or sufficient to subpoena company records, or merely hearsay in a case alleging product liability?  Can statements on a Facebook page implying violence against a classmate or co-worker be used in civil cases?  Further, what control can a company exercise over what an employee posts on their personal social media pages on their own time?  The extent to which these types of social media postings be used in commercial litigation and civil suits has not yet been well tested.

Once a decision has been made to use social media postings in a case, the process of obtaining adequate access can range from a request to your client, an order by the court, to filing subpoenas with the social media owners, which must be done in California through CRS or other means.  Requests to the website owners required detailed information regarding the account you are wanting access to, and generally the more narrow the time window of postings desired, the easier and more prompt you are likely to get the data.  Whether the information gained will be admitted by the court is, of course, another matter.

About the Author:  John K. Etter is a member of Rodney & Etter, LLC, where he specializes in class action defense, environmental and toxic torts, and intellectual property and product liability cases.  He can be reached at 504-483-3224, by e-mail, and on LinkedIn