Social Media as Evidence, Part III

Ethics and the Collecting of Social Media Evidence

Sorry, non-lawyers, today’s post is another legalese fest.  Tune in next week, and I should have some general thoughts for you on what social media as evidence means to you in the grand scheme of things of policies and procedures.

So from the previous post, it is clear that there is a lot possible uses for social media data to use against your opponent.   However, how do you get to it?  Before I discuss any collection of the data I would like to briefly mention legal ethics.

Ethics and Rules

Legal ethics do not always provides a clear answer in every matter, but in the case of pretending to be someone else in order to "friend" another party on Facebook, it is a clear NO.

You probably already know all about the Hawaii Rules of Professional Conduct, so I am not going to take up your precious blog reading time with going over them.  Just consider these rules when trying to investigate (pre-litigation and discovery phase) another party’s social media prescence.

Some HRPC Rules to Think about in the Realm of Social Media as Evidence:

  • Rule 8.4 (c ) – engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
  • Rule 4.1(a) – make a false statement of material fact or law to a third person; or  (so no posing as a fake person to friend someone on Facebook)
  • Rule 5.3(b) – A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyers; and
  • (c) A lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved[.] (therefore, no lawyer’s employee masking as another person to friend an opponent via Facebook).

The New York State Bar has a good opinion letter summarizing the situation.  You can read it here.  Just remember that Rules of Professional Conduct have variations from state-to-state.

Trying to Get to the Evidence

Social Media may be able to set up and use, but it isn't always easy getting at it for evidence purposes.

Once you figure out what you want it may be difficult to get at.  Subpoenaing the corporate entities that provide the social media sergice is unlikely to yield results.  There is already case law that states the private-message function of Facebook is no different than e-mail and that the sites do not have to produce the messages.  In addition, the Stored Communications Act may prohibit such action.

So this means you will have to go the discovery route and get the opponent to produce it through the process.  In terms of Facebook, it is really simple to do.  There is currently an option where the user can download all their data onto their hard drive.  If you go to “Account Settings” there is a small option link that says “Download a copy of your Facebook data.”  Just follow the instructions and you have your data.  The simplicity of it all negates any response that the act would be overly burdensome.  Twitter is not as convenient, but there is a way to get all your updates in a file and then presented in an Excel spreadsheet.  If you want know more about that visit this link.

Consider using a social media release document (like the way doctor’s use a medical release form).   You can then take that signed release and present it to the social media giants, but the response is dependent on the turnaround time of large corporate entities.  If that does not seemed to be a good option there is finally the time-consuming processes of screen capping, pdfing, printing, and/or videoing the data.

Finally, remember if your opponent’s social media information is discoverable that means so is your client’s stuff.  So take the time and counsel your client about the matters to avoid spoliation claims.

Anyway, that’s it for today, and in general for social media as evidence.  I will touch upon from the business owner’s/client’s perspective about what this means for their social media and electronic document retention policies and procedures.

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.

*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.

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