Author: Attorney Melinda H. South
Remember in grade school (or later) passing notes in class? Remember the feeling when someone was caught and the teacher threatened to read the note to the entire class? Would you be ok with the information from your social networking site being produced in discovery in a criminal or civil case? Social networking sites such as MySpace and Facebook are a potential source of electronic discovery also known as E-discovery.
E-discovery refers to any process in which electronic data (such as text, pictures, videos or documents posted to online social networking web sites) is sought with the intent of using it as evidence in a civil or criminal case. E-discovery is an evolving field. It gives rise to multiple legal, constitutional, political, security and personal privacy issues, many of which have yet to be resolved.
Effective January 1, 2009, the Virginia Supreme Court addressed e-discovery in their Rules. Virginia Supreme Court Rule 4:1(7) states:
A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. Undue burden would be if it would take hours or days to have someone review and download the information; or with a small company, having to dedicate a person to this task, causing interruption in the business activity or prohibitive costs to answer this request. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause.
As to the form that this information may be produced, Rule 4:9(b)(iii)(B)(2) addressed this as well:
If a request does not specify the form or forms for producing electronically stored information, or if a responding party objects to the requested form or forms of production, a responding party must produce the information as it is ordinarily maintained if it is reasonably usable in such form or forms, or must produce the information in another form or forms in which it is reasonably usable. A party need not produce the same electronically stored information in more than one form. If the party produces hard copies, they do not have to also send the information on a CD.
In addition to information posted to Facebook and My Space being subject to discovery in a legal proceeding, there have been other recriminations from postings on these social networking sites. Since Facebook was originally limited to educational institutions, some of the first effects were college and university administrators acting on incriminating or inappropriate information or pictures on their students’ social networking profiles and postings, where the information or pictures showed violations of school policy or codes of conduct. Now other businesses have begun checking these social networking sites to obtain more information on employees, potential customers, and others. Businesses are already screening job applicants through their MySpace or Facebook pages. Professional organizations or parent groups can also screen members this way. In the long run, colleges and universities could do the same with potential applicants. Postings may be taken as an indication of personal or moral character. Insurance companies are using information posted on social networking sites to protect their interests.
Increasingly, postings from these social networking sites are showing up in the legal field. In criminal law, evidence from these social networking sites has helped some prosecutors show that a criminal defendant’s remorse in court is not genuine. In each of two recent cases, prosecutors used social networking site postings to show that a drunk driver who caused injury or death was back drinking to excess shortly after the incident.1 In another case, a witness identified a murder suspect from a group photo on the victim’s Facebook posting. Even defense attorneys are finding them useful. One attorney in Arizona used a posting to help get his client acquitted of assault charges. The posting apparently included a video showing the accusing witness beating up someone else, and raised questions about who the aggressor was in this fight.2 Some law firms are routinely checking social networking sites for information and insights about their own clients, opposing parties, witnesses, and even jurors.
While a fun way to communicate, these sites create a potentially permanent record of personal information. Before you post information, consider how it may be used or viewed in the future. Because your friends can re-post your information and pictures elsewhere, what you post may potentially be available on the internet forever. Something that seemed cool at 18, may not seem so later in life.
The bottom line: Be careful what you post. And monitor what is being posted about you. If a friend posts a photo you feel is inappropriate, ask them to remove it. Once it is online, it becomes a permanent record available for discovery not only by the law, but also by family members, potential employers and others, and could affect you for many years in the future.
About the Author: Melinda H. South is an attorney with the personal injury law firm of Allen & Allen. Melinda works in the Richmond office as a legal researcher and assists in the preparation of firm briefs and legal memoranda.
1 – See the articles at http://www.santabarbaranewsroom.com/news/crime–justice/internet-plays-key-role-in-vehicular-manslaughter-sentence.html and at http://atthehearth.wordpress.com/santa-barbara-article-on-sentencing-courtroom-shocked/
2 – See http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1192179809126.