What’s your status? Social Media in Litigation

Facebook has 500 million users worldwide. 50% of those users log in on any given day. For those of us that are active on social media, much of the information can be a public airing of the marginalia of everyday life. Let's face it, most people don't care to hear about me taking my dog out for a walk. While some of these posts may be of limited value, others can make or break a case. Litigators are recognizing these posts and tweets exactly for what they are, unfiltered recordings of present sentiments. Before status and tweets, email and instant messages were thought to be the best sources of present sentiment. Social media sites seem to elicit an even more informal communication style from its users. Litigants in recent cases have been haunted by their status entries and tweets from the past. These cases include a race car driver suing a race track for his injuries discussing his most recent fishing trip on his Facebook page or the "homebound" plaintiff in a personal injury case showing her most recent photos of her vacation in Florida.
What is there to get?
Each site has different options for information that can be obtained. The type of evidence available depends on the application and how often it's used. Facebook tends to be a higher traffic site than MySpace or similar media sites and offers more as far as interface options than Twitter. However, Twitter has become a commonplace business communication device. As far as Facebook is concerned, it is possible to capture emails, photos, statuses, comments and some chat sessions. With Facebook email, it is possible to send attachments to emails as well as photos. Much of this content is available either on the PC or mobile interfaces.
How can we get it?
Of course, it is always possible to directly subpoena information from Facebook or similar sites. However, please remember that these sites are often hit with these types of requests and may not be entirely responsive. There are two other primary ways to get the information from social media sites. Many litigants are requesting social media log in and password information directly in their discovery requests. This may be a preferable way to go for many people. As with any database, these hierarchy set up by users in these sites can be complex in format. Sometimes viewing a user’s posts in their native format can be the best way of gleaning context from the entries. In Facebook, it is also possible to "download" an entire profile through the user interface. Once again, it is still necessary to gain access to the user's account. However, the download feature makes it easier to gather the user's information quickly and comprehensively. The download feature is located in the user settings. The download comes in the form of a segmented zip file containing photos, videos, wall posts, sent and received messages, friend lists, notes, events and other content. There is no way to pick and choose what content you want to see from the downloaded information as it comes as a set bundle. Facebook security mandates that the user receive and respond to an email to receive the capture zip file. Twitter has a similar mechanism for downloading updates. Instant messages are not included in the download file. It is possible to access older messages through the interface by clicking on the name of the contact in the chat window.
What are the "gotchas?"
The information found in these sites is usually covered by the Federal Stored Communications Act. The law was designed to allow for discovery of content held by third party internet service providers. However, the applicability of this law to information on social media sites is still somewhat unsettled. It is necessary to see how your jurisdiction interprets the SCA. Secondly, like any website, the information found on these sites is highly dynamic. Information that was deleted prior to the collection generally cannot be recovered. In addition, it may be necessary to go back to the well for refresh collections as discovery proceeds.
Conclusion
Social media sites present a unique opportunity to get in the head of an opponent when they are at their most vulnerable. The path to get there can be somewhat difficult, however, the rewards may very well be worth it. It is certainly worth recommending social media inclusion to your legal teams during your next discovery endeavor.