Increasingly claimprofessionals and attorneys (among others) are turning to socialmedia to conduct research for their investigations. Whether the intendedpurpose is to examine the validity of a claim or gauge the veracityof a plaintiff, investigators are finding new ways to leverage theinformation accessible on sites such as Facebook and Twitter.

But glimpsing into the veritable treasure trove of intelligencefound on these social media sites is not without caveats. ClaimsMagazine's Christina Bramlet spoke with Attorney Deborah A.Lujan to learn about what is admissible in court and what ethicalconsiderations a prudent investigator should evaluate prior tomaking new “friends.”

Are social networking sites useful for lawyers andinvestigators?

Yes. Facebook and Myspace are social networking Web sites whereusers are allowed to add friends and restrict access to theiraccounts may provide useful information. However, if a claimant/plaintiffand/or potential employee has taken reasonable steps to keep theinformation private, then they have a privacy interest in theinformation and/or their web page. The Stored Communications Act(SCA) is a federal statute that prohibits third parties fromaccessing electrically stored communications—for example, e-mailsor Facebook entries without proper authorization. (18 U.S.C.Section 2701)

Therefore, under the SCA, an offense is committed if anyone (1)intentionally accesses with authorization a facility through whichan electronic communication service is provided”; or (2)intentionally exceeds an authorization to access facility andthereby obtain . . . an electronic communication while it iselectronically stored in such a system.” The ElectronicCommunications Protection Act defined electronic storage as anytemporary immediate storage of a wire or electronic communicationincidental to the electronic transmission or communications byelectronic communications for purposes of such communication.”

However, if a claimant has a web page that is accessible andopen to internet users indiscriminately wherein he or she postspersonal information and has not taken any reasonable step to keepthe information private, that information is can be used by adefendant if determined to be reliable.

How can information obtained from networking sitesprovide useful tools in discovery?

Information obtained from social networking sites can provideuseful information to attack the credibility of a claimant,witness, or expert. For example, a claimant/plaintiff testifiesthat he cannot eat, drink, or smoke, yet photographs of that persondrinking and/or smoking surface. This type of evidence can be usedto impeach plaintiffs and witnesses.

Are there ethical consideration for lawyers andinvestigators?

If a lawyer is prohibited to engage in contacting a claimant ora plaintiff, then so would a private investigator or third party.Attorneys can be disciplined for enlisting a third party to“friend” a witness or claimant on Facebook or Myspace. Both stateand national bar association rules of professional conduct prohibit attorneys from engagingin activities that could be viewed as dishonest, fraudulent, and amisrepresentation. However, lawyers and third parties may useinformation they obtained that is publicly available.

Is information obtained from social networking sitesadmissible in court?

The applicable Rules of Evidence govern the admissibility ofsocial media as evidence. The proponent of the evidence will haveto demonstrate that the evidence is relevant. Further, theevidence's probative value must outweigh the danger of unfairprejudice, confusion, and misleading the jury—for example, anentire Facebook page may not be admissible, but only relevantportions. Witness statements on social media may be hearsay. Somefederal courts have held that Facebook pages are hearsay. Thus, thestatements must fall under a hearsay exception, such as admissionsby a party-opponent, or the present sense impression of a witness.Inadmissible hearsay may include “wall-postings” or other“comments” from third parties.

Social media must be properly authenticated because it ispossible to create a Web page with another person's name on it.Tips for authentication include providing testimony of the personwho obtained the Web page; when and how it was done; and affirmingthat copy is accurate, or subpoenaing the material directly fromthe source. The proponent of the evidence may also submit otherevidence to support that the author of the web materials actuallywrote it, such as an admission by the author (if attainable), thetestimony of a witness who observed the creation of the web page,or contents of the web page that connects it to the author.

Do social networking sites have to comply withsubpoenas?

There is no question that social networking sites must complywith government subpoenas if they relate to criminal matters orinvestigations. However, it is unclear whether social networkingsites must comply with civil subpoenas from parties requestinginformation about another customer's account. At least one courthas enforced such an order (a Federal District Court sitting inColorado). But an argument exists that the Federal StoredCommunications Act, 18 U.S.C. § 2701, prohibits social networkingsites from disclosing information about a user's page to anyoneother than the user himself. The Act provides that a person orentity providing an “electronic communication service” or “remotecomputing service” to the public “shall not knowingly divulge” thecontents of a communication “while in electric storage by thatservice” or “which is carried or maintained on that service….” TheAct contains exceptions for requests from the “originator” of thecommunication and the intended recipients, as well as governmentagencies if the subpoenas relate to a criminal investigation.

Courts have held (without much explanation) that Web-basede-mail providers such as Google Mail and Yahoo! Mail fall under theterms “electronic communication service” or “remote computingservice” and are therefore prohibited from releasing the contentsof a customer's e-mail account pursuant to a civil subpoena. If acourt were to conclude that social networking sites also fall underthese terms, then the sites could contend that they are prohibitedunder the Act from releasing information about their users' pages.The law on this issue is currently unsettled.