The use of Twitter and Facebook is forcing attorneys to consider a lot more issues than just whether to "friend" a colleague.
Users of social networking sites beware: All of those off-the-cuff remarks and spontaneous photos just might land you in court. Items on Facebook, MySpace, Twitter, LinkedIn and other social media sites are a treasure trove for attorneys. A photo of a drunken binge could affect a drunken-driving case. A worker petitioning for disability benefits could be presented with his skiing video. A sexual harassment charge could be bolstered by sexually oriented remarks posted online.
"Scanning social media sites is becoming more and more a part of case preparation," says Emily Root, an associate at Squire, Sanders & Dempsey.
"Clients are entrenched in technology both in their business and their personal lives. When lawyers get involved in litigation, we must seek and produce electronic data, and increasingly that includes data from social media sites," says Lucian Pera, a partner at Adams and Reese in Memphis, Tenn. He's also president of the Association of Professional Responsibility Lawyers, a national organization that focuses on legal ethics and professional responsibility.
What would an attorney find on your Facebook page? Could you end up in court over your Twitter messages? Before posting that next video of a wild weekend or discussing how lucky you were to evade arrest, consider how area attorneys can use that content against you in a court of law.
Social Networking Primer
Social networking sites are no longer online playgrounds for teens and young adults. A 2010 Pew Internet & American Life Project report shows that 47 percent of adults use them, up from 37 percent in November 2008.
Social media users create individual profiles. They post written content, photographs and videos, as well as send and receive messages. Users also connect to others on the site. Among adults with a social network profile, Pew Internet data show 73 percent of them have a Facebook profile, while 48 percent are on MySpace.
Business professionals network online through LinkedIn. Pew Internet says 14 percent of adults post their résumé, send messages and link to current and former colleagues.
In a 2009 survey, Pew Internet found that 19 percent of adults use Twitter to send and read "tweets." These messages of up to 140 characters are on the author's profile page and appear on the home pages of those who follow them.
Because case law generally lags behind issues surrounding any emerging technology, the legal aspects of social networking don't fit neatly into existing canons of law. "Some law has developed, but a lot of social media issues haven't reached higher courts for resolution yet," Root says.
"Remember, there was a time when we worried about the security of faxes and how e-mails would be used. Doesn't that seem silly now? The legal profession, like any other, adapts to new technologies. Social media is no different," says Yvette Cox, a member at Bailey Cavalieri.
Electronic communications already have changed how attorneys approach cases.
"It used to be you'd go to the library. You'd pound the pavement to track people down. Now you can get a wealth of knowledge from your desk. I don't know if that's a good or a bad thing," says Kevin Shook, a senior asssociate with Frost Brown Todd. He's also chair of the Ohio State Bar Association's Media Law Committee.
The long reach of social networking sites touches nearly every area of law: criminal and corporate cases, employment law, copyright infringement suits and disclosure of proprietary information claims. Additional legal issues include defamation, proper attribution and causing emotional distress.
"It's common when suit is brought to retain e-mails and other electronic communications that are subject to discovery. The new media is creating new wrinkles, though," Trevas says. "There are different procedures for information stored in your personal or company computer and information stored in a third-party provider's computer, such as these social media sites."
Attorneys use electronic discovery, or e-discovery, to seek, locate, secure and search electronic data for use as evidence in civil or criminal proceedings. It applies to information stored on individual computers and in networks. All data types are included: e-mail, text, images, websites, online calendars, audio and video files and more. Firms typically assign e-discovery tasks to in-house litigation support specialists who search online sites meticulously.
"At the start of a case, lay the foundation for acquiring the information. Include social media sites and ask what sites they have accounts with. Do your online due diligence early," Trevas says.
Firms also ask their own clients about social networking activity. "It's possible the opposing counsel will be searching your client online, so you better know what's there," Shook says.
Attorneys can use the information to determine personal relationships, establish motives, confirm whereabouts, prove and disprove alibis and show patterns of behavior. Evidence that goes straight to the character of the user is often found, too.
"If someone claims they're injured and unable to work, but they post on Facebook that they're running a marathon, that information can be used in a deposition," Shook says.
Incidents like that are not abnormal, so social media users would be wise to use a little common sense. "Social media sites expand distribution and creativity, but the user is still in control of what is smart and appropriate to post," Trevas says.
Obtaining information from social networking sites can be tricky, though. "The providers don't want a lot of discovery requests, so the terms are favorable to the user," Root says.
"The federal Stored Communications Act has no provisions for subpoenas for content. It's been a source of considerable litigation, because attorneys generally believe a subpoena for Facebook shouldn't be any different than for any other document," Root says. Attorneys can issue a subpoena for non-content aspects of a site, such as the name on the account and time of use.
The courts are concerned with custody and control. "The user may not have custody of the information-meaning it's not sitting on his home computer-but he does have control over the access. If an attorney requests it, the user has to give authorization, because he controls the access," Root says.
Lawyers shouldn't expect unfettered access, though. "Users are obliged to produce what's relevant. If there's any indication they're not being forthcoming, then we can have a bad faith issue. We'd go to the judge and ask to go through the items ourselves," says Justin Flamm, a partner at Taft Stettinius & Hollister who works from the firm's Cincinnati office.
Familiarity with social media postings helps attorneys shape their cases. "I wouldn't say, ‘I read this on your Facebook page.' I'd ask open-ended questions and follow up on the answers to see what information the person offers willingly. Perhaps it's consistent with what's out there and perhaps it's not," Flamm says. "It's one thing to get helpful information. It's another when you can show a person is willing to lie under oath."
Social networking content also addresses credibility. "What are they saying about themselves or an incident in a less-guarded setting like a social media site? That can be very revealing," Flamm says.
Attorneys cannot direct clients to delete compromising content or they could face sanctions for destruction of evidence. If the user deletes the content anyway, or already had deleted it in the past, it still may be possible to retrieve it. Even so, Root says, "Once something is taken down from a social networking site, the third-party provider has no independent obligation to keep it in storage."
Accumulating online friends, fans or connections is integral to social networking. It also has the attention of attorneys. "The idea of ‘friending,' linking and becoming a fan is interesting. In a criminal context, if a prosecutor thinks a crime has been committed, and he can get access to the friend list, he now has a list of potential witnesses," Shook says.
In the Courtroom
The concept of friending impacts officers of the court, too. "Some judges are reluctant to be friended. Others aren't," Shook says. "It's similar among attorneys. Clients might not want to see that I'm a friend of the opposing counsel."
In those cases, Trevas contends the term "friend" is the issue, not the actual online connection between the two people. "Why would you give up access to new media solely because of terminology? Anyone using these sites understands what friending means," he says.
Another application of social networking information is jury selection. In Franklin County, attorneys usually receive jury pool profiles ahead of time.
"Lawyers only have a few minutes with them in the courtroom to ask questions and determine if their views could affect their decision at trial. Now, we can look around social media sites," Shook says. "The Internet doesn't replace the question-and-answer session. It just gives you the chance to learn things and ask better questions."
Once a jury is seated, members may find it tempting to tweet about the proceedings. "A judge can see if a juror is twittering during a case. There are still bounds of appropriateness and common sense that a judge can enforce when he gives instructions and during courtroom proceedings," Trevas says.
Ethics and Privacy
Unresolved legal ethics questions swirl around social networking sites. "An attorney's liability can be more than not being able to use whatever evidence you found online. You can't commit illegal acts, obviously. You can't be deceitful or use unauthorized access," Root says.
Some attorneys might be tempted to friend someone associated with a case using another name or through a surrogate. In March 2009, the Philadelphia Bar Association ruled that "friending under pretext" is unethical, as is using a surrogate.
"It's clear you can't have someone friend someone else that you're investigating and use the information in your case," Root says. "But what if someone is already a friend and has access to content? Take a divorce case. A spouse may forget to unfriend friends of the soon-to-be ex. Can that information be used? Is it deceitful?" Root says.
"Lawyers are held to a different standard," Pera says. "But it's not always clear with social media. The related issues often raise more questions than answers."
Users can adjust their privacy settings on social media sites. "Can everyone see the content? Is it limited to select groups of online connections? The more limited it is, the more effort it takes an attorney to get to it," Root says.
But users can't necessarily hide behind the privacy setting. In 2009, a Canadian court allowed pretrial discovery of a person's Facebook profile, ruling that the privacy setting was irrelevant.
It's not unusual for social media users to post words, photos and videos without giving much, if any, thought to the potential consequences. "From the standpoint of availability of online information for legitimate professional reasons, it's amazing. From a privacy standpoint, it's frightening," Cox says.
"Some people say that privacy is dead, so get over it," Pera says. "I see it as a demographic issue. People today have different expectations about privacy than just, say, 10 years ago. The 20- and 30-year-olds have a different notion of privacy than those in their 40s and 50s. To be a lawyer and try cases and not understand that is a problem."
An understanding of the technology, related issues and how clients perceive and use social networking is necessary. "An attorney's duty now is to find out what's on social sites that help or hurt their client, access it through the proper channels and then zealously advocate for their clients," Trevas says. "It's what they already do with information located in other places."
Lisa Hooker is a freelance writer.
Reprinted from theJune 2010 issue of Columbus C.E.O. Copyright © Columbus C.E.O.