Social Media as Evidence, Part II

In the last post I talked about using social media as evidence and its legal relevancy to the litigation process.  Today's post will be full of legalese, but my blawg is designed to help entrepreneurs of all types and that includes my fellow solopreneurs and small law firm attorneys.  As always, I will be discussing today's subject in general and informative terms, and any procedural stuff will be with respect to Federal Rules.

Therefore, if you are a non-lawyer feel free to stick around, but today’s information is geared to others in the legal profession.  I thank you for stopping by and I will soon be getting back to some relevant posts to general small business situations.  However, before you go be aware that there are certain ethical rules that lawyers and those attached to them must follow.  For example, a lawyer cannot pose as a fictitious person and friend you on Facebook to get your information.

That being said just remember you should always be guarded about what you put out for the public using social media. Have a review process and if you have questions feel free to check my earlier posts on Social Media Policy.

Areas of the Law and Social Media as Evidence

Social media evidence has found a place in criminal and divorce (especially, with the flirtations that go back and forth between people).  It also has great use with corporate and employment law. Social media is good for providing alibis for criminal proceedings, discrediting a witness, and investigating people that are a part of the case.

In terms of torts, corporate blogs and statements put out by employees are great for products liability and personal injury situations.  While disputes of discrimination, emotional distress, and workers’ compensation fraud cases are backed up with Facebook pictures and Twitter posts.  Many bloggers use pictures, clips, and text freely from IP covered sources.

Some cases to consider:

  • EEOC v. Simple Storage Mgmt (2010) – refuting a claim of emotional distress from discriminatory conduct
  • TEKsystems, Inc. v. Hammernick (2010) – where plaintiff alleges that defendants violated a non-solicit agreement via their LinkedIn account

When to Gather Evidence

Consider poking around early.  If  you think your client may be sued or wants to sue someone else see what the opposing side has already put out there.  Basically, find out what you freely can about your opponent.  If they regularly use social media, consider it an opportunity to get information on them for free.  Once litigation commences, posts get deleted, privacy settings get set to maximum, and the ease of just screen-capping or printing a webpage is gone.

The flip side is that once discovery commences you will be allowed to use more formal methods to try and compel social media evidence.  Some ideas on the procedural formalities:

  • Interrogatories – should be used to identify the opponent’s screen or avatar names and the underlying social media account that is connected to each of those names;
  • Requests for production – should seek blog entries and postings, and if you can, use the date and timestamp connect to them;
  • Requests for admission – these should then be designed to backup and authenticate any such information gathered.

A Rule 26(f) conference should lay out the ground rules for social media production.

Defending Your Use of Social Media as Evidence

Watch how people connected you talk about your products and services. Make sure employees and paid bloggers disclose anything you gave them in connection with touting your business's products and services.

Be prepared to defend all of that valuable evidence that you have discovered.  I discussed relevancy last week, but also hearsay and authentication enter into the equation.  Normally, it is sufficient that the witness who has personal knowledge that the evidence is in fact what it is purported to be.  Courts have accepted that website printouts need not be authenticated by the original poster or the site’s owner, but by an attorney that testified that they visited the site, recognized it as opposing party’s, and printed the screen. (Jarritos, Inc. v. Los Jarritos)(2007)

In general, for authentication issues, ask yourself the following two questions:

  1. Whether the exhibit is really a printout from the site you are claiming it to be from?
  2. And whether the printout can be satisfactorily shown to have arisen from the where you are claiming it came from?

For a more in-depth look at authentication of social media the ABA has provided an excellent article on the matter written by David I. Schoen and can be found here.

As always if you like this post or any of my other series please Subscribe to this blawg to receive updates to your e-mail.  In addition, follow me on Twitter @Rkhewesq and Like Me on Facebook under Ryan K. Hew.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

Next time I will continue looking at other issues of using social media as evidence.  Namely, collecting and then preserving it.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.