Think Before You Post - Rising Use of Social Site Evidence

Facebook has arguably succeeded in its mission to “give people the power to share and make the world more open and connected.”¹ Unfortunately, an ever-increasing number of people are starting to discover that sharing so much information is not always a good thing.

Neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure specifically address social networking sites, but many courts nonetheless consider social site evidence to be an admissible form of electronically stored information (ESI).

For now, courts consider private content contained on social networking sites to be protected under the Stored Communications Act (SCA), making disclosure of this information difficult to compel. In Crispin v. Christian Audigier, Inc.,² the District Court of California granted the plaintiff’s motion to quash subpoenas issued to sites including Facebook and MySpace on the grounds that they fall within the definition of an electronic communication service provider (ECS). Note that extending SCA protection precludes subpoenas issued in civil suits; however, it does not prevent the information from being subpoenaed in a criminal investigation.

On the other hand, public content is fair game. Savvy litigators have wasted no time using status updates, wall postings, pictures and other profile information to investigate witnesses, prospective jurors and opposing counsel in an effort to help develop well-tailored trial strategies.

Courts across the country are also permitting the use of social site evidence at trial. Recently, the Maryland Court of Appeals affirmed that the identifying information in a MySpace personal profile, such as the person’s photograph, date of birth and family references, could be used to link the page to the person – even when pseudonymous and anonymous profile names are used.³

Social site evidence can wreak serious havoc on a case. With popularity of these sites on the rise, companies, employees and litigators must remember to be:

• Aware: Information visible on social networking sites is admissible as evidence, so think before you post.
• Proactive: Explore the increased security settings available on these sites, and consider suspending activity or removing profiles when engaged in litigation.
• Savvy:Recognize the strategic value of these sites to your own case, and take advantage of the information early.

¹ Facebook's mission statement (last accessed July 16, 2010).
² 2010 WL 2293238 (C.D. Cal. May 26, 2010).
³ Griffin v. State, 2010 WL 2105801 (Md.App. May 27, 2010).