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.
