Social Media Evidence: Confronting New Issues With Existing Rules (Introduction)
by
Jeanette M. Durham on Nov. 19, 2015
Lawsuit & Dispute Litigation Divorce & Family Law
Summary: The following sections are intended to survey the legal community’s response to the recent explosion in social media content to determine if special rules are needed to specifically address social media.
Social
Media Evidence: Confronting New Issues With Existing Rules
Jeanette M. Durham*
Every
day, millions of people interact on social media sites like Facebook[1],
Twitter and MySpace to chronicle the intimate details of their personal and
professional lives[2]; social
media has therefore become a virtual treasure chest of online information that
can make or break a case.[3] Recent studies have revealed that
consumer use of social networking sites is not just a youth phenomenon;
instead, social media use has become a part of mainstream daily behavior.[4] Now that social media and social
networking are constant and ubiquitous,[5]
the legal community has been forced to confront unique challenges as a result.[6] In the twenty-first century, courts
have adapted evidentiary rules to emails, web pages, text messages, and other
electronic media.[7] However, with courts beginning to
gradually adapt to social media, new issues have arisen that relate to
professional ethics and attorney conduct in discovering social media evidence.[8]
While courts have not reached a
clear consensus on the proper treatment of the discovery of information posted
on social networking sites, attorneys can be proactive with early
investigation, tailored discovery requests, and timely motions to preserve
content.[9] At the same time, lawyers should remain
mindful when gathering social media evidence that existing rules of ethics
prohibit deception, misrepresentation, knowingly making false statements to a
third party or directing another to make false statements.[10] Increasingly, state boards of bar
overseers are dealing with these issues head with existing rules and standards
of professional conduct.[11]
The
following sections are intended to survey the legal community’s response to the
recent explosion in social media content to determine if special rules are
needed to specifically address social media. First, I will examine legal issues that arise relating to
the discoverability of social media evidence; when access to content is sought
directly from a user,[12]
or when content is sought directly from social network providers in light of
the Stored Communications Act (SCA).[13] Second, I will analyze admissibility
issues involving social media evidence.[14] Finally, I will examine ethical
considerations for lawyers in this new age of social media and social
networking and explain why existing rules governing judicial conduct may be
inadequate.[15] In conclusion, I will explain why new rules
are unnecessary to address discoverability and admissibility of social media
evidence, but why litigators and judges should instead seek to uniformly apply
existing rules.[16]
*J.D. Candidate, 2013, University of Maine School of Law.
[1]584 million average daily Facebook users in Sep. 2012, available at http://newsroom.fb.com/Key-Facts.
[2] Ethan Wall,
Richard Greer, Social Media
Crossroads An Analysis Of The Law At The Intersection Of Discovery And Privacy
In The Realm Of Social Media. 2012
WL 1378541 (WJCOMPI), 1. (Apr. 20, 2012).
[3]John Browning, Digging for the Digital Dirt: Discovery and Use of Evidence from Social
Media Sites, 14 SMU Sci. & Tech. L. Rev. 465, 465 (2010-2011).
[4] See Nadine Weiskopf, Social Media Continues To Be A Challenge For E-Discovery, 14 Lawyers J. 4 (May 18, 2012) (discussing the April 2011 results from a study conducted by Arbitron, Inc. that revealed age demographics of social networking website users).
[5]Aviva Orenstein, Friends, Gangbangers, Custody Disputants, Lend Me Your Passwords, 31 Miss. C. L. Rev. 185, 186 (2012); see also David Carr, Keep Your Thumbs Still When I’m Talking to You, N.Y. Times at ST1 (Apr. 17, 2011), available at http://www.nytimes.com/2011/04/17/fashion/17TEXT.html?ref=fashion (discussing the new age of electronic texting as a common method of communication).
[6] Christina Parajon Skinner, The Unprofessional Sides of Social Media and Social Networking: How Current Standards Fall Short, 63 S.C. L. Rev. 241, 242 (Winter, 2011).
[7] Deborah Jones Merritt, Social Media, The Sixth Amendment, And Restyling: Recent Developments in the Federal Law of Evidence, 28 Touro L. Rev. 27, 45 (2012).
[8] Sandra Hornberger, Social Networking Websites: Impact on Litigation and the Legal Profession in Ethics, Discovery and Evidence, 27 Touro L. Rev. 279, 279 (2011).
[9] See Christie Strange, SOS FOR SNS: How to Navigate the Sea of Social Media, 54 No. 9 DRI For Def. 25 (Sept. 2012).
[10] Browning, supra note 3, at 475-476.
[11] See Id. at 476-477 (discussing the 2010 New York City and 2009 Philadelphia Bar Associations’ formal opinions relating to deceptive practices in sending Facebook “friend requests” and the 2011 San Diago County Bar Association formal opinion relating to ex parte communications via social media with a represented party).