socialmedia.jpgWhile discussions between attorney and client are confidential, what the client chooses to post on social media is available to the world.   It can be gathered by defense counsel and harm the client's claim by giving away the attorney's strategy and opinions.   The ubiquity of social network accounts on networks like Facebook, Twitter, MySpace changes the way discovery will be conducted going forward.  Posting about your claim before it even becomes a lawsuit could be harmful if you give away information that the opposing counsel never would have known.  Similarly, posting information about your ongoing claim can be just as harmful to your claim and undermine the work that your attorney has done on your behalf.  Posting to social media is extremely dangerous to your claim if your profile is visible to the public rather than restricted via privacy settings  - but it is still good practice not to post anything related to your claim on the internet.   

Recent cases highlight the problems of admissibility and discoverability of social media in discovery -but the courts have not come to a consensus and Congress hasn't addressed the issue since the 1980s. In 1986 Congress enacted the Electronic Communications Privacy Act- which includes the Stored Communications Act (SCA). The SCA prevents internet service providers (ISPs) from divulging private communications with few exceptions - none of which include civil litigants.  ISPs may at their discretion give non-content information to civil litigants which would include IP logs and basic subscriber information but would not include postings and pictures.  However, many companies refuse to give out their records citing privacy concerns.

So how are lawyers using social networking web sites as evidence?

  • 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

Recent cases:

  • State v. Carroll, No. 07CA14, 2007 WL 2696883 (Ohio Ct. App. Sept. 11, 2007) Court admitted information from and testimony about a MySpace page, where the victim told the defendant, and also posted, her age.
  • In re T.T., 228 S.W.3d 312 (Tex. App.--Houston [14th Dist.] 2007) In terminating the defendant's parental rights, the court allowed the introduction of content from the defendant's MySpace page, which stated that he was single and did not want children.
    But ...
  • Crispin v. Audigier, No. 2:09-cv-09509 (C.D. Cal. May 26, 2010) A district judge reversed a magistrate judge's ruling that the fashion house Christian Audigier, Inc. can subpoena Facebook and MySpace communications of an artist who sued the designer for copyright infringement on grounds that messages on the social networking sites are protected information under the Stored Communications Act.

Source: DLA Piper Webinar: e-Discovery Implications of Social Networking (June 8, 2010).
For more information please visit: http://www.nelsonmullins.com/DocumentDepot/Discovery_of_social_networks.pdf