Social media plays a prominent role in the daily lives of millions of people, whether it is to receive a news update, to stay in touch with friends and family, or to gain social recognition. Social media enables a wealth of information to become disposable almost instantaneously. For lawyers, the pervasive nature of social media potentially makes it a goldmine to obtain evidence. However, the question arises about evidence of this nature, specifically if it can be permitted in court and whether it can be lawfully obtained by lawyers.
Information pertaining to an individual’s social media page can be permissible as evidence in the court of law. The key is to make sure that the information is accessed and obtained in an acceptable matter. In EEOC v. Simply Storage Mgmt, the court allowed disclosure of information including "any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and social networking site applications" that referred to any emotional state. 270 F.R.D. 430. As such, there is no dispute that an attorney may access the public portions of an individual’s social media account. However, what about private information that is unavailable to the public?
When an individual’s private information is on a social media page, the information must be ethically and legally obtained to permit the admissibility of evidence in court. Although this should not be an issue for publicly available information, non-public information is more of an issue. For example, “friending” someone specifically to access the private information (or a non-public portion) of the individual’s account may eradicate the admissibility of social media evidence in court.
However, publicly available information which is discovered on an individual’s social media account is completely ethical and fair game to be used as evidence. In a New York case, the Romano court posited that, despite the plaintiff's privacy settings, information she had published on her Facebook and Myspace accounts was discoverable. Romano v. Steelcase, Inc., 907 N.Y.S.2d 650, 657 (N.Y. Sup. Ct. 2010). The available information can provide a belief that relevant data will be found on non-public accounts or non-public portions of the accounts belonging to the individual. Id. Assuming the attorney does not obtain this privatized information in an unethical manner, the evidence will be admissible. It is imperative for legal firms to conduct ethical and compliant collection of potential social media evidence.
Although the use of social media pertains unequivocally to the access of relevant social media evidence, the duty to preserve the content is also under siege. Data found on social media pages are subject to the same preservation duties as other types of electronically stored information (ESI). For ESI, the duty to preserve is generated when an individual can reasonably foresee that evidence may be relevant to the current litigation issues. Just like any other piece of evidence, in order to get social media evidence admitted at trial, a lawyer must be able to prove that the information is relevant. FED. R. EVID. 401, 403. Furthermore, all evidence in a party’s possession, custody, or control is subject to the duty to preserve and authenticity. People v. Clevenstine, 891 N.Y.S.2d 511, 514 (N.Y. App. Div. 2009) Authenticity is established through a showing of genuineness and proof that the evidence has not been tampered. Id.
There are many commercially available tools specifically designed for archiving and collecting social media content. Failing to preserve evidence, however, can lead to detrimental consequences to a business or individual, including sanctions. The duty to preserve enables social media to be discoverable, with the relevancy becoming the primary focus of the discoverability analysis. Courts are likely to grant the discovery of social media content where the requesting party has identified some sort of evidence showing the existence of relevant information. Forman v Henkin, 134 A.D.3d 529. Consequently, when an individual’s social media account is not publicly available, the probability of its discovery diminishes significantly.
With the prominent use of and advancement of technology, social media continues to present unique litigation questions. Businesses have an obligation to preserve any potentially relevant evidence. The creation of Facebook and other social media platforms should not require a different standard of preservation. Instead, social media evidence should not be viewed any differently than physical documents and should thus be preserved in the same way as paper documents. Social media is simply just another form of ESI, subject to discovery if information is relevant to the dispute.