Social media evidence: what you can't use won't help you: practical considerations for using evidence gathered on the Internet.

• Author: Holt, Michael R.

"My life is an open book." These words, used long before the advent of the Internet, sum up the impact of what is now known as "social media." Social networking is an exploding phenomenon. It not only impacts our daily lives, but legal matters as well. And if used wisely, it provides a treasure trove of information for counsel on either side of a dispute. Thanks to sites like Facebook, Twitter, LinkedIn, and Pinterest, to name just a few, we are now privy to a limitless array of data. This includes personal comments, messages, photographs, and information such as a person's hometown, date of birth, address, occupation, ethnicity, height, relationship status, income, and education.

In the span of just a few minutes, one gains insight into someone's state of mind by scanning tweets or posts. Or they can track the physical condition and activities of a party by viewing his or her photographs and activities. This information can be useful for a variety of reasons ranging from mediation to impeachment or rehabilitation. As a result, information shared through social networks--social media evidence--has assumed a prominent role in a variety of litigation contexts and has taken on particular importance in criminal matters, family law, personal injury cases, criminal law, business torts, and employment disputes.

Social networking is, relatively speaking, a fairly new concept. Emerging approximately 10 years ago with the development of MySpace and LinkedIn in 2003, (1) social networking sites have grown from a few thousand users to more than a billion. (2) These sites have become a preferred form of electronic communication, surpassing email in 2009. (3) The world's population now spends more than 110 billion minutes on social networks and blog sites. (4) As of March 31, 2011, 9,370,620 Floridians had registered for a Facebook account, which is approximately half of the state's population. (5) Based on these statistics, it is inevitable that the social media accounts of at least one person involved in a dispute will have potentially relevant and discoverable information. But finding an online "smoking gun" does not guarantee that it will ever find its way into a courthouse or before a jury.

In the wake of social media's explosion as a communication device, judges and juries throughout Florida are being asked to evaluate the information provided by it in their deliberations. While the Florida Rules of Civil Procedure were amended in 2012 to provide guidelines pertaining to the discoverability of electronically stored information (ESI), (6) the Florida Evidence Code is still silent on the topic of the admissibility of this potential evidence. Now that Florida's rules of procedure and its courts have confirmed that social media evidence is discoverable, (7) parties are calling upon courts to answer the question of whether this evidence is admissible, and under what circumstances.

This article examines some of the challenges counsel encounter when dealing with social media evidence, from location and preservation to trial presentation. This includes obtaining information directly from social media sites, such as Facebook, and difficulties presented when key evidence exists only on the Internet Archive. The article also discusses unique evidentiary concerns posed by social media evidence and how courts have dealt with those challenges thus far. Ultimately, by following the proper procedures in finding, preserving, and presenting social media evidence, attorneys can ensure that this key material reaches the jury.

Finding and Preserving Social Media Evidence

Preserving social media evidence is just as critical as its presentation. The gathering process can begin within minutes of an attorney receiving a client inquiry or a new assignment. A brief Internet search can quickly assist counsel in finding potentially powerful evidence supporting or refuting a claim. Assuming that the website is "publicly available," (8) preservation of the content becomes important. Preservation involves printing the home page of the website along with screen shots.

Although social media evidence might be a fairly new concept, the rules of procedure can help counsel preserve it. If the opposing party has some direct affiliation with the site, spoliation letters and/or motions to preserve are appropriate. These devices can ensure that opposing parties do not delete or alter social networking sites, online blogs, or any other potentially useful accounts. Individuals who have potentially damaging information stored on their social media accounts may be quick to alter or destroy that information after being contacted regarding the websites. This conduct opens up a host of issues which are beyond the scope of this article.

Parties may also obtain social media information through traditional discovery. Interrogatories should ask the respondent to identify all websites that he or she uses to communicate with other individuals; the name, account, or user name information associated with that website; the names of all individuals who have access to that account; the last time the account was accessed; and the individual's email addresses, phone number, home address, and other typical biographical information. Likewise, requests for production of this information can seek printouts evidencing each account and copies or screen shots of all photographs and messages included within the account.

* A Word About Subpoenaing Facebook: Exemplary Futility--Parenthetically, one might wonder why a litigant would send written discovery to an opposing party when third-party discovery might work just as well or perhaps even better. The classic example is Facebook, on which users post massive amounts of personal information. Under the Stored Communications Act, (9) however, Facebook may not disclose the contents of an account pursuant to a subpoena or court order to any nongovernmental entity. Facebook describes its user content as messages, timeline posts, and photos. (10) Therefore, Facebook will only provide and preserve user content in response to a valid law enforcement request. (11)

Facebook will provide "subscriber information," but not user content, pursuant to a lawful subpoena. (12) To ensure compliance, the party seeking the information must establish that the requested information is indispensable to the case and not within the party's possession. (13) Additionally, Facebook requires that it be served with a valid California or federal subpoena. (14) It further requires that out-of-state subpoenas be domesticated in California and personally served on Facebook's registered agent. (15) Parties must provide Facebook with the user's email address, Facebook user ID (UID), and vanity URL. (16)

Simply providing a user's name, birthday, and location will not allow Facebook to correctly identify the user's account. (17) The information should be propounded upon Facebook's registered agent, along with a processing fee. (18) To ensure that Facebook complies, limit the subpoena to the following categories of information: name, length of service, credit card information, email address(es), and a recent login/logout IP address(es), if available. Facebook will reply to your request typically within 30 days. (19)

* The More Practical Way of Obtaining Social Media Evidence--One can avoid the many aforementioned hurdles by obtaining a...