By Mary Mack, Corporate Technology Counsel, Fios. ^[1]

Social media is emerging as a cottage industry for electronic evidence.  It is now playfully referred to as an electronic “permanent record” in this era of Wikileaks.

“It just makes for a beautiful exhibit, and there’s no longer any question about what was said,” says Cassandra Ferrannini ^[2], an employment law attorney with the Sacramento law firm Downey Brand. Conversations are displayed complete with date and timestamps.  Some conversational snippets show up in context, others out of context.

Labor and employment attorneys are aggressively using Facebook and other social media outlets.  All areas of litigation and investigation are using social media to find and vet witnesses, for subpoena and impeachment reasons.  There is even an iPhone App for background checks ^[3], which reports the usual demographic information and also includes social media activity.

Ralph Losey, Brett Anders and I will be discussing one of the many Facebook cases involving what is public and what is private in Crispin v. Audigier, Case No. CV 09-09509 MMM (JEMx) (May 26, 2010).  The  Summer Case Law Update Part 2 happens on August 4, 2010 at 1PM EST. Register here ^[4].

Harvesting Social Media for Legal Purposes

Consequences of social media harvesting can be loss of privacy, trade secret protection, privilege protection and the public proliferation of the proverbial “smoking gun”. The privilege protection can be lost for subject matter, not only a simple email or conversation.  Trade secrets can become readily ascertainable.

Records managers and compliance officers used to counsel against pressing the “send” key for email.  It was thought that there were fewer inhibitions with email.  With social media, the personal is blurred with the professional.  Emotions, pictures, videos are shared amongst friends, who may share with friends, who may share with friends….

An upset at work or with a spouse can be documented in its full expression.  81% of top divorce attorneys report a surge in cases ^[5] using social networking evidence.

How Social Media is Obtained for Legal Purposes

The easiest way to get social media evidence is to use commercially available tools that are focused on marketing and branding.  Radian6 ^[6] and others in their genre can troll the web and the boards for conversations happening about an individual, an issue or a company.  They can download and aggregate the material easily.

Other ways to obtain web or social media evidence include asking a person for their password or to print out or download material, subpoenaing the individual, company or provider and getting an order. Forensically analyzing the individual’s hard drive for remnants of conversations will produce whole conversations and some snippets requiring expert testimony.  Some walk a thin ethical line and “friend the friends” of the targets as many people are unsophisticated about privacy settings on platforms like Facebook.

Eric Meyer has written a comprehensive article ^[7] on how to obtain social media evidence for The Legal Intelligencer. He goes a little far afield in the age of proportionality to suggest:

So, as part of discovery, an employer should consider requesting:

All online profiles, postings, messages (including, without limitation, tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams, and blog entries), photographs, videos, and online communications that:

1. refer or relate to the allegations set forth in the complaint;

2. refer or relate to any facts or defenses raised in the answer;

3. reveal, refer or relate to any emotion, feeling, or mental state; or

4. reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.

There are some emerging cases ^[8] allowing the privacy of private posts, so private rants will not be actionable as defamation.  Richard Raysman and Peter Brown give a comprehensive and succinct overview ^[9] of online defamation.

Legal holds, preservation, archiving

There are emerging legal and compliance tools to allow archiving of social media, like Smarsh Social Media Archiving ^[10] and iCyte ^[11] to archive web pages.  PageFreezer ^[12] is archiving websites and will be introducing social media archiving this fall. iterasi ^[13] has moved from pure social media into electronic evidence.

Sharon Nelson compiled a list of archiving possibilities ^[14] in advance of her service ^[15] offering to corporations to address social media .

Benjamin Wright suggests ^[16] that organizations consider using email posting via corporate email systems to fold their social media activity into existing records management and retention systems.

Email archives are the starting place for any enterprise that wishes to maintain electronic records for legal compliance purposes.  I argue the same goes for Twitter ^[17].

There is a possibility that corporate email will work for corporate sponsored social media, with training, and less likely it will work for the ad hoc work group social media explorations or individual postings.  After all, the beauty of social media is that it is looser, in the wild, immediate and yet now, permanent.

Authentication

No post on emerging technology as evidence would be complete without a walk through the FRE (Federal Rules of Evidence). David Kiernan and M. Anderson Berry of Jones Day do a wonderful analysis in the style of Judge Grimm in Authenticating Web Pages as Evidence ^[18].  Be planful in collection.  Document in the moment.  It will pay dividends down the road.

Other Issues: Crisis management, Service of Process and Privacy

Clare Rodway ^[19] wrote me on LinkedIn that there was an gag order on news during a very hot case.   (Trafigura) Social media broke through the embargo causing more crisis to be managed.  Bob Ambrogi, always early in the adoption cycle, collected 10 examples ^[20] of web activity ending up in court.

Monique Altheim ^[21] is tracking the Facebook personal information harvesting (user ID’s and other information scraped from Facebook being distributed via BitTorrent, a peer to peer rapid file sharing service).  Monique recommends ^[22] that default settings on #Facebook ^[23] should be “friends only.”

Inside Counsel has a great article today on handling social media strategically ^[24]. (Thank you, Rob Robinson, @complexd for this last minute link via your own social media machine.)

And one cannot forget that Australia allowed service of process via Facebook.  See Hedges, Rashbaum and Losey (the other Losey) on Virtual Jurisdiction ^[25] (Fios whitepaper).

I will be continuing this discussion of social media and electronic discovery in a number of venues which should be archived if you are actually enjoying your summer:

August 4, 2010 at 1PM EST with Ralph Losey and Brett Anders as part of our Summer Case Law Update, register here ^[4].

August 10, 2010 at 12 EST for the National Federation of Paralegal Associations (NFPA), Beyond E-Mail: Web 2.0 and E-Discovery Preservation for Paralegals, Register here ^[26]. (fee, and credits)

** Disclaimer ** While I am intrigued about products mentioned here, I am not yet recommending products in this piece.  I work at Fios, Inc. ^[1], a leading ediscovery service provider.  We process, reduce and host electronically stored information (ESI) for our clients at their lowest possible cost.