Friending for Evidence

computer-security-guide-cover-2nd-ed

4-Step Computer Security Upgrade

Learn to encrypt your files, secure your computer when using public Wi-Fi, enable two-factor authentication, and use good passwords.

Are you completely ignoring social media? Are you blocking access to social media sites at your firm? Are you using social media to get evidence for trial? If you’re not careful, you may be violating your state’s ethics rules.


Federal prosecutors are scouring the Facebook pages of defendants. More and more divorce cases include incriminating evidence captured on social media sites. As the use of social media evidence at trial continues to grow, some courts are beginning to delve into the ethical boundaries of obtaining such evidence and even a lawyer’s ethical obligations to provide competent representation.

In their recent Law.com article, Ethical Bounds of Using Evidence From Social Networks, H. Christopher Boehning and Daniel J. Toal, provide a brief synopsis of recent decisions discussing how lawyers in certain jurisdictions may permissibly obtain information on social networking sites. Here are some areas the synopsis covers:

  • Lawyers ability to access Facebook information of a party other than their client in pending litigation.
  • Friending, or directing another to friend, a party or witness to obtain evidence.
  • Monitoring juror activity on social media networks.
  • Competency of representation related to knowledge of social media.
  • Diligent representation related to investigating social media sites.
  • Preservation of social media evidence.
  • Third-party communications related to social media.

That’s right friends, unilaterally ignoring social media might actually get you into hot water with your state bar. And while that might seem absolutely ridiculous to some lawyers, is it any different than competency and diligence issues relating to checking phone records, emails, or even security camera footage?

The admissibility of social media evidence at trial is another interesting issue. Nonetheless, use of such evidence is likely to continue experience dramatic growth. It’s also creating a whole new industry of companies that collect social media information for later use in a variety of context. Couple this with a society that is largely clueless, or perhaps apathetic, about what they’re sharing online, and we have a recipe for a lot very interesting legal issues relating to privacy and various constitutional rights.

Have you run into social media evidence issues in your practice? Let’s hear some war stories.

(image: http://www.flickr.com/photos/birgerking/5600215736/)

Subscribe

Get Lawyerist in Your Inbox, Daily

Current Articles
Current Lab Discussions
  • It’s interesting to think about whether divorce attorneys are running into spoliation of evidence problems in regards to social media. I’m increasingly hearing of divorce lawyers insisting to their clients that they delete their older social media status updates/comments or even their entire accounts.

    • That is an interesting one. I’ve heard similar recommendations coming from injury attorneys.

      I’ve also heard that insurance companies are investing with those companies that scrape and log social media posts and images. Folks just haven’t yet recognized that what they post online will come back to haunt them.

      It seems to make a lot of sense that a lawyer’s obligations regarding diligence include investigation of social media.

  • If you feel that the “cutting edge” is always 5 miles from wherever your feet are right now, you’re probably right. It wasn’t so long ago that the idea of using the electronic version of Shepards’ caused consternation among senior attorneys and eye-rolling among junior lawyers.

    Big changes today. It is not unusual to hear from senior attorneys who want to leave Facebook and the rest of social media to young lawyers. Relatively new attorneys can then be caught between their own free-and-easy use within personal social networks, and the rules of evidence which are stretching and changing to cover internet content. While having your secretary print out email might have been cause for amusement (and a big pain for your secretary), leaving unadvised and il-supervised junior attorneys to attend to clients and the internet seems like a recipe for malpractice litigation.

    • Yep. I’d like to see more collaboration between experienced older attorneys and younger attorneys in terms of understanding web technologies. The veterans have the experience, many of the younger attorneys have more tech-know-how. Instead, it seems that there’s a lot of resistance and division between the old and new guard.

  • I like the comparison you draw between an attorney’s competency in social media with pulling phone records or video footage. Essentially, a person’s Facebook profile is a billboard of information that could potentially be seen by millions passing by on the figurative highway. The same as broadcasting on the radio or television, this public announcement is equally and substanatively evidence of the client’s position and should be incorporated as such. I’m glad that the law is attempting to keep up with the technological progression and enforce a standard of evidence collection that reflects major societal norms such as social media communications.

    • Like them or not, these social technologies are here to stay. Like every other piece of tech. there will be growing pains along the way in terms of how they are used.

  • I’ve been practicing since ’85, first in commercial litigation for 11 year, then I left the firm and started doing 90% estates and trusts. I still get into the arena from time to time, though (must be the Roman in me) in business and estate cases. I’m in one now where I can’t go into detail, but think there is a plethora of incriminating evidence on one or two of the sites of my opponent’s client. He most definitely spoliated it too: I printed that out. This may sound stupid, but I’m from the carbon paper and mimeograph generation; just how does one go about subpoenaing this stuff? Thanks!

  • I recently had a client who sent me a link to a Craigslist forum discussion in which several people discussed details of her case. To avoid a long explanation of the circumstances, suffices to say that while the content of the discussion was itself was not helpful to her case, it might have helped her if we could demonstrate that the posters were two particular witnesses in her case (of the hundreds who might have had knowledge of the incident discussed). However, unlike posts on Facebook or other common social media sites, discussions on Craigslist are anonymous. Finding out the posters’ identities would have required subpoenaing Craigslist for the IP address, tracing that to an ISP, and getting a second subpoena for the ISP to find out the identity of the ISP owner – assuming it wasn’t someone’s work, local library, or the nearest Starbuck’s – for a one-in-a-hundred shot that the identity of the poster was actually relevant. The client insisted. I refused.

    Instead, while deposing those two witnesses, I spent about two minutes asking each one questions and established the information I was looking for. What I took away was this: Social media is an exploding trend in e-discovery, and certainly an intriguing area of law, but it’s not always the most efficient stream in which to fish for information.