Using Social media to Win in Court (Part 3 of 3)

Now that you've been made aware of how helpful social media can be in winning your case, here is how to get the information you need without finding yourself on the receiving end of a counter-suit.

There are strategic considerations to make when requesting the information directly from litigants. The following steps address the key considerations:

1. Determine whether any social networking information is publicly available and gather the publicly available data before making a request directly to the opponent.

2. Consider the best time to make the request.

3. Prevent existing data from being lost or deleted.

4. Get a court order compelling production of the information.

First, Get Publicly Available Content

Depending on each user’s privacy settings, some information is available to any person with an account on the particular website. On Facebook, a user can customize the privacy settings to allow groups of friends to view certain content while restricting the content from other friends. The user can restrict content to a network of users, such as other users who went to their high school or college. Some users make basic profile information publicly available but restrict photos and comments. To find publicly available information on your opponent in litigation, the best  place to start is often by Googling the person’s name. If the party has an uncommon name or an unusual spelling, you will frequently find links to that person’s online profiles. A Google search can provide links to the person’s social networking profiles, blogs the person publishes or to which he contributes, news stories about him or on which he has commented, or countless other websites that either reference that person or that are written by him. It can also be helpful to search for the person’s name in individual websites’ search engines. In Facebook, the majority of users have some basic information such as a name and photo publicly available. Only registered Facebook users can conduct searches using Facebook’s own search engine. When a search is conducted in Facebook, the results are prioritized by the searcher’s own information. Thus, when a registered user in Salt Lake City, Utah who attended the University of Utah searches for a John Doe who also lives in Salt Lake City and attended the University of Utah, that John Doe will be at the top of the search results. Other John Does will show up lower on the list of matches. It is also possible to filter search results by various identifiers such as location, school, or workplace. If your opponent’s social networking data is publicly available, simply save the relevant information as PDF documents. Bookmark the websites and periodically check them for new information.

Strategically Time your Request

Search engines will not conclusively reveal whether a particular individual has an account on the website in question. Some people use aliases and other people have common names that make them difficult to find. If social networking data on your opponent is not publicly available, or if you cannot determine whether the individual has any social networking accounts, you will have to ask for the information from the party. Some attorneys ask whether a party uses any social networking websites in their first set of interrogatories and request copies of the data in their requests for production of documents. The best timing for such requests depends on the nature of the case. In some cases it is better to wait until after taking the party’s deposition to ask about social networking. The party being deposed will then have already detailed his claims and there is a better chance that social networking data can later be used for impeachment purposes.

Make Sure Information is Preserved

Plaintiffs and defendants have a duty to preserve evidence when they learn that the materials are relevant to an investigation or litigation. The requesting attorney should, at the least, remind his opponent of his duty to preserve evidence when he makes a request for social networking data. Consider petitioning the court for a “freeze” order compelling the party to preserve the information. You can also directly contact the websites to request that content a user deletes is preserved by the website.

Get an Order Compelling Production

If your opponent will not voluntarily provide the social networking data requested, move the court for an order compelling the party to produce the requested documents. Motions to compel discovery of social networking content have been successful in several courts.4 These courts have found that there is no expectation of privacy in the posting of Facebook and MySpace information, even when the user limits access to selected online friends.You may consider subpoenaing the information directly from the website in question, but you will likely run into difficulty. Facebook has interpreted the Stored Communications Act, 18 U.S.C. § 2701 et seq., as prohibiting them from disclosing the contents of a user’s Facebook account to any non-governmental entity even pursuant to a valid subpoena or court order. They have had some success defending this position in court. The better approach is to get an order compelling the individual user to produce the information or give authorization for the information to be released from the website. An order for the plaintiff to turn over his user name and password may go further than necessary. This order is akin to ordering a homeowner to turn over the keys to his house rather than simply to make the property available for inspection. Instead, courts can order parties to produce printed copies of the websites’ content. Courts can also order parties to allow opposing counsel access to their social networking websites by adding the attorneys as “friends.” Recently Facebook has provided an option for users to download a compressed file of their entire history of Facebook activity. The compressed file contains PDF documents of every piece of content the user has posted. Courts can order production of Facebook content by ordering users to produce their account history files. Parties can then be required to periodically supplement the disclosure with updated files as the case goes on. Beware of the temptation to become an opponent’s fake online “friend,” as this action would likely violate the rules of professional conduct prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation. The New York City Bar Association’s Committee on Professional Ethics issued an opinion specifically prohibiting actions such as creating a false Facebook profile for the purpose of making a friend request to an opponent.

Conclusion

Social networking websites are growing by hundreds of thousands of users per day. Savvy attorneys recognize the value of the information opposing parties are posting online and use it to the advantage of their clients.