May 2012 Bar Bulletin
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May 2012 Bar Bulletin

Electronic Discovery and Social Networks

By Bill Roberts


Under the revised Federal Rules of Civil Procedure, all electronically stored information is subject to discovery. There may be difficulty in determining who controls the information, how to retrieve it and how to manage the burdens of discovery, but there is little question that social networking information is important evidence in many cases.

Social Network Discovery Presents Unique Opportunities

The anonymity of the Internet causes many people to post pictures or information they might not reveal in public. People will post almost anything on social networks. Plaintiffs have posted photos showing their physical prowess despite claiming permanent disabilities (Welding Fume Prods. Liab. Litig.; Ernest Ray v. Lincoln Electric). Threats have been made on Facebook (Martinez v. Tufano). Jurors have even "friended" witnesses during trial (People v. Rios) and made comments about trials on their status updates (United States v. Fumo).

Additionally, social networks such as Facebook and LinkedIn solicit the user's email ID and password in what appears to be a login sequence. The site then uses this information to scan a user's email contact lists or address book to invite all of the user's contacts to link on that network, frequently inviting unknown friends of friends to make a connection. A local example of this was a woman learning she was in a polygamous marriage after Facebook invited her to friend her husband's other wife.

One court has suggested that even when measures, such as password-protecting access to materials placed on the Internet, are taken, the materials are not considered private because they could be accessed by the public.

In United States v. Gines-Perez, the court held that when evaluating privacy on the Internet, the objective nature of the medium in which information is contained is ultimately dispositive and will override the subjective intention of a person who places information on the Internet. Even if a user restricts access to their information through the site's privacy settings, most social networking sites warn users that they cannot control how recipients may distribute their information.

In late 2011, Facebook started notifying users that they were removing privacy settings as part of the process of redefining their privacy structure. The possibility of inadvertently publicizing "private" user content on social networking websites makes an expectation of privacy unrealistic.

In the case of social networking, several parties may have "possession, custody or control" of the communications and other information.

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