Web 2.0 crashes through the courthouse door: legal and ethical issues related to the discoverability and admissibility of social networking evidence.

• Author: Grubman, Scott R.

Social networking usage has skyrocketed in recent years, and its exponential growth has already started to impact a number of both civil and criminal cases. Courts are struggling to address issues raised by social networking evidence and the unique ethical and legal challenges that it presents. This article offers a thorough discussion of the issues facing attorneys dealing with social networking evidence in both the pre-trial discovery phase and at trial, and offers a number of useful suggestions to attorneys seeking to use social networking evidence to effectively advance their clients' interests.

1. INTRODUCTION II. BACKGROUND A. The Rise of Online Social Networking B. Social Networking's Effect on the Law 1. Use of Social Networking Evidence in Criminal Cases 2. Family Law Cases 3. Personal Injury Cases III. LEGAL AND ETHICAL PRE-TRIAL CONSIDERATIONS A. A Note on Pre-Trial Obligations in a Criminal Case B. Discoverability C. Discovery Obligations 1. The Rules Attempt to Catch Up 2. Discovery Tools Under the Federal Rules 3. Litigation Holds and Social Networking D. Ethical Obligations 1. Model Rule 1.1 & 1.3--Competence & Diligence 2. Model Rule 3.4--Fairness to Opposing Party and Counsel 3. The Honesty Rules and a Note on Pretexting IV. ADMISSIBILITY OF SOCIAL NETWORKING EVIDENCE A. Authentication B. Hearsay C. Character Evidence V. CONCLUSION I. INTRODUCTION

   Twenty-year-old Joshua Lipton was not unlike most people his age--he liked to party, he liked to drink, and he liked spending time on the popular social networking website, Facebook. (1) Little did Mr. Lipton know, however, that the combination of those pastimes would land him in prison. (2) After a night of drinking, Lipton drove his car while under the influence of alcohol and crashed into another vehicle, seriously injuring a woman. (3) Just two weeks after he was charged with DUI, Lipton was back at it. This time, he attended a Halloween party dressed as a prisoner in a "jail bird" jumpsuit. (4) The prosecutor in Lipton's DUI case found photographs of Lipton at the party that someone had posted on Facebook, and used them "to paint Lipton as an unrepentant partier who lived it up while his victim was recovering in the hospital." (5) The judge in Lipton's case called the photos "depraved" and cited them when sentencing Lipton to two years in prison. (6)

   Lipton's case is not unique. Laura Buys, a twenty-two-year-old woman from Santa Barbara, California, was driving drunk when she crashed her vehicle, killing a passenger. (7) Buys pleaded guilty to vehicular manslaughter and expressed her deep remorse. (8) Buys and her attorney expected her to receive a probationary sentence, and the prosecutor indicated that he was willing to recommend probation. (9) However, after entering her plea, the prosecutor searched Buys' name on the Internet and found her MySpace page, complete with photos of Buys at a party that took place after she entered her guilty plea. In addition to the photographs that depicted Buys drinking wine and smiling, the page contained "several entries about drinking and partying." (10) The prosecutor submitted the page at the sentencing hearing, and Buys' sentence went from a probable probationary sentence to two years in prison. (11)

   Then there was Jessica Binkerd. Binkerd was a recent college graduate who was charged with a fatal drunk driving accident. (12) Her attorney, Steve Balash, asked Binkerd if she had a MySpace page and, when Binkerd told Balash that she did, he told her to take the page down. (13) Apparently, Binkerd did not act upon this advice. Right before Binkerd was sentenced, Balash was surprised by the prosecution with a pre-sentencing report that included photos posted on MySpace after the crash; one of Binkerd holding a beer bottle, and another of her in a T-shirt advertising tequila, and wearing a belt adorned with plastic shot glasses. (14) Binkerd was eventually sentenced to more than five years in prison. (15)

   These are just three of the many recent cases in which evidence taken from online social networking websites has affected the outcome of a court case. The phenomenon is not limited to criminal cases, either. As one author recently noted: "MySpace and Facebook have proven especially useful to attorneys who seek incriminating evidence in family law matters, personal injury claims, and criminal law cases." (16) This article will discuss social networking evidence in the context of pre-trial discovery, as well as the admissibility of such evidence at trial, in both criminal and civil cases. Section II of the article will outline the recent rise of online social networking and give a brief primer on what social networking is and how it works. It will also discuss the impact that social networking has had in the legal world. Section III will discuss pre-trial legal and ethical considerations facing an attorney dealing with social networking evidence. Section IV will deal with the issue of admissibility of such evidence at trial, and will discuss some of the obstacles that lawyers might face in attempting to admit social networking evidence including problems with relevance, authentication, hearsay, and the prohibition against character evidence.

2. BACKGROUND

   1. The Rise of Online Social Networking

      In the last five years, the phenomenon that is online social networking has blossomed from a fad enjoyed by the young to a movement that crosses age, race, socio-economic, and geographic boundaries. In a survey conducted by the Pew Research Center's Internet & American Life Project in February and March 2005, only five percent of all respondents indicated that they had used social or professional networking sites. (17) The percentage was slightly higher for members of the "Millennial Generation" (18) and "Generation X" (19)--seven percent of respondents in each of those groups indicated that they had used social networking sites. (20) In an identical survey conducted in January 2010, forty-one percent of all respondents indicated that they had created their own profile on a social networking site, such as Facebook, MySpace, or Linkedin; a thirty-six percent increase. (21) Even more significantly, seventy-five percent of Millennial Generation respondents, and fifty percent of Generation Xers, indicated that they had created a social networking profile. (22) Even Baby Boomers--a demographic that, in large part, has only recently joined the world of online social networking--experienced a significant increase in social networking usage, growing from five percent in 2005 to thirty percent in 2010. (23)

      "Social networking" is defined as "the use of a website to connect with people who share personal or professional interests, place of origin, education at a particular school, etc." (24) Social networking websites allow users to publish their own content to share with friends, co-workers, potential employers or employees, or the public at large. (25) The sites "typically allow users to create a 'profile' describing themselves and to exchange public or private messages and list other users or groups they are connected to in some way." (26) Most social networking sites also allow users to share pictures, videos, and other media. (27)

      Facebook, which has emerged as the leading social networking site in the United States, was launched by then-nineteen-year-old Mark Zuckerberg, an undergraduate student at Harvard College, in February 2004. (28) Facebook describes itself as "a social utility that helps people communicate more efficiently with their friends, family and coworkers." (29) The company's stated mission is "[g]iving people the power to share and make the world more open and connected." (30) Like many social networking websites, Facebook allows users to create their own profile, which can include biographical information, photos, videos, interests, hobbies, work and educational background, as well as any other information the users feel inclined to share on the world-wide-web. (31) Users can then request that other users they know--or would like to get to know--add them as a "friend," which then allows the connected users to stay in touch and to share information. (32) Facebook users can also chat in real time with friends that are logged in at the same time, publish "status updates" with any information they would like to share with their friends, and join "groups" to communicate with individuals that share the same interests. (33) Each Facebook user has a "wall," which is a space on the user's profile page that allows friends to post messages for the user to see while displaying the time and date the message was written. (34) When a user signs on to Facebook, the first thing he or she sees is a "news feed," which is a constantly updated list of the user's friends' Facebook activity including profile changes, status updates, upcoming events, and birthdays. (35) Facebook users can also post "notes," which are similar to blog entries, and can even utilize Facebook's "marketplace" feature, which allows users to post free classified ads. (36)

      For the first month of its existence in 2004, Facebook was available only to fellow Harvard undergrads. (37) Amazingly, within twenty-four hours of its launch, 1,200 Harvard students had created a Facebook profile. (38) In just one month, over half of the Harvard undergraduate population had a profile. (39) In March 2004, Zuckerberg expanded Facebook to include students at Stanford, Columbia, and Yale. (40) Over the next year, Facebook quickly expanded to allow access to students from all U.S. colleges, followed by U.S. high schools, and then by schools abroad. (41) By December 2004, Facebook had nearly one million active users. (42) One year later, that number increased to 5.5 million active users. (43) Finally, in September 2006, Facebook opened its registration to anyone with a valid e-mail address. (44) Facebook hit the 100 million active users mark in August 2008, 200...