July 13, 2011 Articles

Effectively Accessing Social Media Websites for Use at Trial

It is inevitable that an important player in your lawsuit will have potentially relevant and thus discoverable information located online.

By Travis B. Swearingen

In 1999, Judge Samuel B. Cant of the Southern District of Texas, in his decision in St. Clair v. Johnny’s Oyster & Shrimp Inc., 76 F.Supp.2d 773, 775 (S.D. Tex. 1999), cautioned against relying on information from the Internet, which he characterized “as one large catalyst for rumor, innuendo, and misinformation” and “voodoo information” that is “adequate for almost nothing.” Ten years later, disciplinary authorities are grappling with the question of how to deal with judges who become Facebook “friends” with attorneys who appear before them. According to Nielsen’s published stats, the world now spends over 110 billion minutes on social networks and blog sites. This equates to one in every four and a half minutes or 22 percent of all time spent online total. Social Networks/Blogs Now Account for One in Every Four and a Half Minutes Online, NielsenWire, June 15, 2010. As of July 21, 2010, Facebook boasted over 500 million active users, at least 50 percent of which log in on any given day. As of April 2010, Twitter had 105 million registered users with 300,000 new users joining every day. Bianca Bosker, Twitter User Statistics Revealed, The Huffington Post, Apr. 30, 2010. MySpace has 123 million unique users. Peter Chubb, Facebook Dethrones MySpace: New 2010 Statistics, Product Reviews News, Nov. 21, 2010. The average Facebook user adds 90 pieces of “content” every month, be it a status update, photograph, or blog post. Some estimates place the number of Internet blogs at over 150 million. NM Incite, a Nielsen/McKinsey Company (last visited Jan. 6, 2011). And it’s not just computer savvy kids either; the fastest growing demographic for social networking websites is individuals over the age of 35. Peter Corbett, Facebook Demographics and Statistics Report 2010—145% Growth in 1 Year, iStrategyLabs, Jan. 4, 2010.

Based on these statistics, it is inevitable that an important player in your lawsuit will have potentially relevant and thus discoverable information located online. To harvest this information, it is now common practice for trial lawyers to conduct online research on their own clients, opposing parties, witnesses, experts, and even jurors.

Social Media Data Can Make or Break Your Case
The average online social networking profile contains a wealth of potentially discoverable knowledge. Profiles can include a person’s hometown, date of birth, address, occupation, ethnicity, height, relationship status, income, education, and a limitless array of comments, messages, photographs, and videos. While all of this information may be helpful, it is usually the messages and photographs that are the focus of a litigation search. Although not scientifically verifiable, anecdotal evidence suggests that a user’s social filter—the buffer that tells us what not to say and do at a dinner party—stops working the moment a person sits down in front of a computer screen. During recent political races, Facebook photographs emerged of candidates or their influential staff performing sexually suggestive acts while dressed up like Santa Claus (Kashmir Hill, Krystal Ball Offers Glimpse into the Future of Politicking for the Facebook Generation, The Not-So Private Parts, Oct. 10, 2010), groping cardboard cutouts of their candidate’s opponent (Facebook: Obama Speechwriter Parties with Clinton Cut-Out, The Huffington Post, Dec. 5, 2008), and violently vomiting after over-indulging on adult beverages (Eli Sanders, GOP Party-Boy Scandal!, The Stranger, Oct. 10, 2006).

With increasing frequency, courts are holding that what you do and say on Facebook can and will be held against you in a court of law. Information exchanged via social networks has assumed prominent roles in a variety of litigation contexts and has taken on particular importance in family law, personal injury, criminal law, business torts, and employment matters. Recently, a local matrimonial lawyer commented to this author that the first step in any divorce proceeding was to try and seize the other party’s computer hard drive and the incriminating treasure trove it may contain.

The importance of social media has been evidenced in several recent decisions. In an Ohio family law case, a divorcing husband and wife were contesting custody of their five-year-old daughter. The trial court found that its primary concern was a determination of what would be in the “best interests of the child.” Dexter v. Dexter, No. 2006-P-0051, 2007 WL 1532084, at *1–2 (Ohio Ct. App. May 25, 2007). During the proceedings, the husband’s counsel located the wife’s online blogs, where she admitted that she practices sadomasochism, that she was on a hiatus from using illicit drugs during the pendency of the proceedings, and that she planned to use drugs in the future. The wife further admitted in her online blogs that she would use drugs in her home while the child was sleeping. Unsurprisingly, the court found that the wife’s lifestyle choices would have a detrimental effect on the child and awarded full custody to the husband. Id.

In another family law case, a husband was recently charged with criminal contempt for violating a domestic relations order of protection by sending multiple communications to his wife’s MySpace account. Dockery v. Dockery, No. E2009-01059-COA-R3-CV, 2009 WL 3486662 (Tenn. Ct. App., Oct. 29, 2009). Elsewhere, a Texas court declined to award custody of a couple’s two children to the father after he posted on his MySpace account “I don’t want kids” two weeks before trial. In re T.T., 228 S.W.3d 312, 322 (Tex. App. 2007). In the U.S. District Court for the Northern District of Ohio, a judge overseeing multi-district litigation related to welding injuries recently dismissed a plaintiff’s claims of permanent and severe disability after defense lawyers uncovered photographs of the plaintiff on Facebook, racing motor boats. In re Welding Fume Products Liability Litigation, MDL 1535, No. 03-17000, N.D. Ohio.

Social Media Information Used as Evidence
Courts are increasingly willing to allow your opposing counsel access to your client’s Facebook and MySpace accounts, regardless of privacy settings. In the recent case of Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y.Sup. Ct. 2010), the New York Supreme Court ordered the plaintiff to grant the defendants access to current and historical Facebook and MySpace pages and accounts on the basis that information on the social networking sites was inconsistent with the plaintiff’s claims in that action concerning the extent and nature of her injuries, especially her claims for loss of enjoyment of life. To convince the court to grant its motion, the defendants produced public portions of the plaintiff’s MySpace and Facebook pages that revealed an active lifestyle that included travel to Florida and Pennsylvania during the time period in which she claimed her injuries precluded such activity. The court was particularly intrigued by the plaintiff’s public profile page on Facebook, showing her smiling happily in a photograph outside the confines of her home in a case in which the plaintiff had claimed significant permanent injuries that had kept her bedridden. The court found that the information sought by the defendants was “material and necessary to the defense of this action and/or could lead to admissible evidence.” Id. at 654.

In Ledbetter v. WalMart Stores, Inc., No. 06-cv-01958-WYD-MJW, 2009 WL 1067018, *1 (D.Colo. Apr. 21, 2009), the U.S. District Court for Colorado ordered the defendants in a personal injury suit to produce Facebook, MySpace, and Meetup.com account information. The court found that because the plaintiffs had called into question their physical condition as well as their relationships with their spouses, they had waived any privileges related to that type of information and that the subpoenas to Facebook and MySpace were reasonably calculated to lead to the discovery of admissible evidence. Id.

Similarly, the Superior Court of Justice for Ontario in a recent decision in Murphy v. Perger, [2007] 67 C.P.C. (6th) 245 (Can.), held that a defendant was entitled to the production of the plaintiff’s Facebook page. The plaintiff had claimed damages for pain and suffering and loss of enjoyment of life arising out of a motor vehicle accident. The defendant had successfully accessed another website that contained a photograph of the plaintiff engaging in various social activities and suspected additional photographs were contained on her Facebook site. The court, in finding that the plaintiff did not have a right to privacy that extended to protecting Facebook photographs, held that “a party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly available profile” and that “any invasion of privacy is minimal and is outweighed by the defendant’s need to have the photographs in order to assess the case.” The judge further found that the plaintiff could not have a “serious expectation of privacy,” as her “private” profile still granted access to 366 people. Id.

Gaining Access to Social Media Information
As it appears courts are becoming more apt to allow social media data into a case, the next question is how to go about accessing the information. However you decide to go about it, I would advise against setting up a fake user name to “friend” the opposing party or asking your paralegal to do so. Such actions are frowned upon.

In the world of electronic discovery and electronically stored information, when a case first lands on your desk, it is common practice to prepare and submit a spoliation letter to the opposing counsel. In preparing such a letter, be sure to specifically mention social networking sites, online blogs, and any other accounts that the opposing party may have. Individuals who have potentially damaging information stored on their social media website may be quick to alter or destroy that information after becoming party to a lawsuit, and Facebook has asserted that once that information is deleted, they have no way of recovering it. Facebook Frequently Asked Questions (last visited Jan. 6, 2011).

If you are able catch someone in the act of spoliation, it may be enough to win your case. In Torres v. Lexington Ins. Co., 237 F.R.D. 533 (D.P.R. 2006), a plaintiff sued a hotel chain, alleging that sexual assault at the hotel caused her to become socially isolated and that she suffered intense humiliation and mental anguish. The defense counsel located the plaintiff’s online account, which contained photographs “depicting an active social life, and an aspiring singing and modeling career.” Id. at 533–534. The defense counsel was able to download and print much of the information and subsequently sent the plaintiff’s counsel a spoliation notice and requested that the remaining data be produced. Two days later, the plaintiff had deleted the account in its entirety. The court sanctioned the plaintiff’s spoliation by dismissing her claims for mental anguish. Id.

After sending a spoliation letter, you can pursue social media information through traditional discovery. Interrogatories should ask the respondent to identify all the websites that he or she uses to communicate with other individuals, the name, account, or username information associated with that website, the names of all individuals who have access to that account, the last time the account was accessed, and the individual’s email addresses, phone number, address and other normal biographical information. The requests for production can seek printouts evidencing each account and copies or screenshots of all photographs and messages included within the account.

Finally, you should submit an authorization to be signed by the respondent that specifically includes the above account information. Information contained on Facebook, MySpace, and any other social media website is protected from subpoena under the Stored Communications Act, 18 U.S.C. § 2701 et. seq. As a result, the most that Facebook or MySpace can produce absent an authorization from the user is basic subscriber information from a particular account. Facebook Frequently Asked Questions, (last visited Jan. 6, 2011). To access photographs, messages, and other account content stored on Facebook or Myspace, you will need an authorization from the user to the social media website, authorizing it to release the specified account information. The authorization should include the user’s account and pertinent biographical information. Undoubtedly, as with most avenues of discovery, the opposing party may refuse to sign the authorization based on privacy or relevancy grounds. With the liberal discovery breadth afforded by the Federal Rules of Civil Procedure and the recent trends toward disclosure discussed above, you should be in a strong position to convince the court to order access to the information.

Once you have the signed authorization and pertinent account information, you can prepare a subpoena to the social media entity. Any Facebook request should be sent to Facebook, 1601 S. California Ave., Palo Alto, CA 94304, Attention: Security Department, or fax 650-644-3229. While Facebook will accept service by fax or mail, MySpace requires personal service on its registered agent at 2121 Avenue of the Stars, Suite 700, Los Angeles, CA 90067. All subpoenas should be addressed to the custodian of records for MySpace.com. The subpoena should include the user’s full name, the full URL to the Facebook or Myspace profile, the school or network in which the person is included, the person’s birth date, known email addresses, the account ID number, phone numbers, the address, and the expected period of activity. Both MySpace and Facebook will accept subpoenas from out-of-state civil litigants only if they have been properly domesticated through a California court. While Facebook and MySpace cannot provide content that has been previously deleted, if a Facebook or MySpace user has terminated his or her account, the entities can restore access to allow the user to collect and produce information to the extent possible. Id.

Admitting Social Media Information into Evidence
Now that you have the information, the next step is to get it admitted into evidence in court. Information gathered from the Internet is usually opposed on authenticity grounds. Federal Rule of Evidence 901(a) requires a party attempting to admit evidence to be able to authenticate it by showing that the evidence is what it is purported to be. Federal Rule 901(b) provides a non-exhaustive list of 10 methods available to the party to make this authenticity showing. While the opposing party can always raise preliminary questions about the evidence under Rule 104, as well as relevancy questions under Rule 401, the most likely hurdle for a party attempting to introduce social networking information is under Rule 901.

Counsel is required under Rule 901 to make a prima facie showing of authenticity. However, Rule 901 does not address how to authenticate electronically stored evidence. Using a conglomerate of the 10 methods under 901(b)(1), however, counsel can piece together a method of authenticating social media data. First, under 901(b)(1), counsel can provide an authenticating witness who can provide factual specificity about the process by which the electronically stored information was created, acquired, maintained, and preserved without alteration or change or the process by which it is produced as a result of the system or process that does so. If you have used a legal assistant or paralegal to print screenshots from someone’s Facebook account, then that person can submit an affidavit or otherwise testify about the method in which he or she produced the information. The affidavit or testimony of the person who made the copy of the website should include the Internet address of the website, the date the content was printed, the method of printing, and the method in which the printing has since been stored.

Second, as set forth in United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000), courts will often allow electronic information to be authenticated by the content itself under Rule 901(b)(4). If a Facebook account contains the contact information, name, date of birth, and other personal information about a particular witness, that information itself may be used to authenticate the ownership of the account, as well as the individual using it. Often, the documents can be self-authenticating by providing distinctive characteristics of the website that address that a particular party authored it if you can prove the person was one of few or the only individual who knew the information at the time that it was submitted to the Internet or the only individual who had access to the account on which the content was published.

Next, a party can take advantage of Rule 902(11), which allows electronic information to be self-authenticated when it complies with the business record exception. If you have successfully subpoenaed information from Facebook, it will be accompanied by an affidavit of the custodian of records. Facebook Frequently Asked Questions, (last visited Jan. 6, 2011). Facebook will refuse to appear in person as a witness. However, use of the affidavit should be enough to overcome any objections to the business record exception.

Concerns with authenticity become even more nuanced when dealing with jurors who may not be technologically savvy enough to understand the intricacies of social media websites. Jurors will undoubtedly have heard of hacking, and opposing counsel may pray on these fears by suggesting that someone other than the alleged author may have accessed the social media account and posted a particular message or status update. In the case of In re K.W., 666 S.E.2d 490, 494 (N.C. Ct. App. 2008), a plaintiff admitted that the proffered MySpace page was hers but claimed that her friend posted the answers to the survey questions that the defendant sought to introduce as impeachment evidence with respect to her claims of rape. Accordingly, when evaluating what method to use in introducing and authenticating social media evidence, you should be cognizant of additional potential hurdles in gaining acceptance with the jury. Questioning the opposing witness and forcing him or her to authenticate a pseudonymous social networking profile, based on admission, may be the most convincing method.

Finally, once the information has been found to be relevant and authentic, the electronic social media information must overcome any potential hearsay objections. In particular, any messages that have been sent between users of Facebook or MySpace, postings on a blog, or other postings on a website will have to overcome typical hearsay objections. This article will not delve into the various facets of the hearsay rule and its application to these statements except to note that under Rule 801(d)(2), most often, the messages that are being made by opposing parties on their Facebook, MySpace, Twitter, or blog pages can be considered admissions by a party opponent.

Conclusion
As soon as a new file hits your desk, you should be researching your own client, opposing parties, witnesses, experts, and even jurors to find all leads and information that they have deposited on the Internet. With the high number of individuals routinely posting information to these social media websites, it is inevitable that someone in your case is going to be directly or indirectly involved. The question is: How do you go about getting that information, and how do you use it to your best advantage? Rest assured, the opposing counsel is going to be taking these same steps to investigate all of the players on your side of the table. You do not want to be caught one step behind.

Keywords: litigation, business torts, technology, social media

Travis B. Swearingen – July 13, 2011


Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).