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March 29, 2009

Social Networking and its Effects on eDiscovery

Social networking websites such as Facebook, MySpace, Linked In, Twitter ... (must I go on?) have taken the world by storm. At the present time, Facebook and MySpace alone are currently attracting around 115 million people to their respective sites each month.

Can social networking sites help (or hurt) your case?

As we have seen on MySpace and Facebook, millions of users daily chronicle the intimate details of their lives including posts of their current relationship status, feelings, opinions. Many even include photographs and videos documenting their lives. Even the professional networking site Linked In, is now trying to become more social by adding a blog application. Most users often don’t consider the evidence they are creating.

Although social network sites have largely been untapped by attorneys, there is a plethora of helpful (and hurtful) information on them for the savvy litigator. Will you or your opposing counsel be the first in a case to bring it to the forefront?

We are seeing an increase in firings over information posted by social networking users. For example, we saw in the recent case Spanierman v. Hughes, 2008 U.S. Dist. LEXIS 69569 (D. Conn. Sept. 16, 2008), Jeffrey Spanierman, a high school teacher in Connecticut, was terminated for creating a MySpace page to supposedly "... communicate with students about homework, to learn more about the students so he could relate to them better, and to conduct casual, non-school related discussions." The MySpace page included, among other, pictures of naked men with "inappropriate comments" underneath them. There was also personal conversations that the teacher was having with the students.

Earlier in 2008, two workers at the University of Mexico Hospital were fired for using their cellphone cameras to take shots of patients in treatment, then posting the pics on MySpace. The workers were fired for violating a hospital policy banning the use of cell phone cameras in patient areas. Other employees were disciplined for keeping quiet about the photos, the spokesman told the AP.

Virgin Atlantic Airways fired 13 members of a cabin crew after they allegedly posted inappropriate comments on Facebook.

Case Examples:

The following is an example of a court that admitted the defendant’s MySpace page as evidence to establish the context of relevant e-mail. See U.S. v. Ebersole, 2008 WL 320242 (Pa. Feb. 6, 2008).

The following is an example of a court that allowed the prosecution to admit photos of the defendant that were posted on Facebook. For more info, watch this news video. Here is an example of a school that used Facebook photos as grounds for a school disciplinary action.

There are a couple reasons why users post things to social network sites that they would typically not share with someone that freely. When you log on to the site you are asked a barrage of questions. Due to human nature, most people feel they should respond to these questions. For example, they see the questions, “What are you doing?, What are you doing right now?, or What are you working on?” The casual nature of these sites encourage free expression without the consideration of posting information that could be evidence to a case years from now.

Another good (or bad) thing about social networks is that friends or acquaintances freely post information on others including photos, videos and comments about they key person in a case. More than likely, the key person did not post this information, but their friend or acquaintance did.

As social networking websites continue to take the world by storm, there is a plethora of helpful (and hurtful) information for the savvy attorney. It may be a great place for you to tap into for your case.

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Comments

The links in this post to CNN and Boston.com do not work.

thanks. we're trying to get it fixed

Social networking sites It is good to us to easily communicate our families and friends, but we will put a little bit restriction for some images that will be take a bad effect to our profile, be a eligible enough for posting a social networking site...

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