Social Networking Sites as Investigative Tools

Social Networking Sites as Investigative Tools:

Social Networking Sites as Investigative Tools CLE Hamilton County Law Library February 25, 2011 Mary Jenkins Law Librarian & Director Hamilton County Law Library, Cincinnati, Ohio

Program Description:

Program Description How to use social networks effectively for litigation-related purposes: The courts and social media as evidence An overview of websites and research techniques to help the attendee research experts, clients, opposing counsel, jurors, and witnesses Mainstream social networks Maintaining privacy Real-time social searching Public records sites

Juicy Goodness for Litigation:

Juicy Goodness for Litigation http://gadgets.boingboing.net/Socialven.jpg

Assumptions:

Assumptions You know something about Facebook, Twitter, LinkedIn, and Martindale Hubbell Connected. You use one or more of those services. You want to know more about finding the dirt on other people like clients, experts, and jurors for work-related purposes.

Outline:

Outline The courts and social media as evidence The mainstream social networks Maintaining privacy Real-time social searching Public records sites The importance of verifying For more information

Slide 6:

The courts and social media as evidence

“Do your social networking privacy settings matter if you get sued?”* :

“Do your social networking privacy settings matter if you get sued?”* * blogs.forbes.com /.../do-your-social-networking-privacy-settings-matter-if-you-get-sued/

NY State Bar Ethics Opinion :

NY State Bar Ethics Opinion Opinion 843 (9/10/10) A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material . As long as the lawyer does not "friend" the other party or direct a third person to do so , accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction). http://bit.ly/cl102N

Legitimate evidence:

Legitimate evidence In a 2010 survey conducted by the American Academy of Matrimonial Lawyers , 81% of responders said they had seen an increase in the use of social networking evidence during the past five years. In fact, the survey cited Facebook as the "unrivaled leader for online divorce evidence“ . http://bit.ly/a1MFJh

Discoverable? Yes:

Discoverable? Yes Romano v. Steelcase, Inc. 2010 NY Slip Op 20388 Since information on a plaintiff's social networking accounts was material and necessary to the defense of her personal injury action and/or could lead to admissible evidence , and since the plaintiff's right to privacy was outweighed by the defendant's need for the information , pursuant to CPLR 3101, the defendant was entitled to the information .

Discoverable? Yes:

Discoverable? Yes NY Romano v. Steelcase also looked to other states for precedent: Ledbetter v. Wal-Mart Stores, Inc. Civil Action No. 06-cv-01958-WYD-MJW, United States District Court for the District Of Colorado Leduc v. Roman , 2009 CanLII 6838 (ON S.C.) http://writ.news.findlaw.com/ramasastry/20100929.html

Discoverable? Yes:

Discoverable? Yes People v. Franco , 2009 WL 3165840 (Cal. App. Ct. Oct. 5, 2009) Franco was convicted of vehicular manslaughter with gross negligence. She had posted on MySpace: “If you find me on the freeway and you can keep up I have a really bad habit of racing random people.” http://blog.ericgoldman.org/personal/archives/2009/10/latest_example.html

Discoverable? No:

Discoverable? No Crispin v. Christian Audigier , Inc., 2010 U.S. Dist. LEXIS 52832, Case No. CV 09-09509 MMM ( Jemx ), United States District Court for the Central District of California “… only if Crispin had set his Facebook wall to allow viewing by "everyone" would his postings have been deemed truly public in the eyes of the California court. If Crispin's setting were "Friends Only," his status updates would be considered as private as an email message.” http://writ.news.findlaw.com/ramasastry/20100929.html

Discoverable? Unqualified Yes:

Discoverable? Unqualified Yes McMillan v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Penn. Sept. 29, 2010) The court ordered production of the information, finding that any expectation of privacy with regard to Facebook and MySpace would be unrealistic . The court explained that, when a user communicates through Facebook or MySpace, the user understands and tacitly submits to the possibility that a third-party recipient will also be receiving the user’s messages and may further disclose them if the operator deems disclosure to be appropriate. http://westlawnews.thomson.com/NationalLit/Blog/ViewBlog.aspx?id=2432&blogid=523&terms=%40ContentID64+%3E+0

Litigation holds:

Litigation holds Email and voice mail systems Databases Instant Messaging Backup Technologies (including flash drives) Network Storage Systems Desktop and Notebook Computers and Operating Systems Mainframe Systems Web Services Photocopiers Gaming system hard drives http://gsysd.com/articles/what-every-cio-needs-to-know-about-legal-holds.html

Duty to preserve:

Duty to preserve Jain v. Memphis Shelby Airport Auth. , No. 08-2119-STA-dkv, 2010 WL 711328, at *2 (W.D. Tenn. Feb. 25, 2010). [Sixth Circuit] It is a duty to preserve potentially relevant evidence that a party owns or controls and to notify the opposing party of evidence in the hands of third parties. http://ralphlosey.files.wordpress.com/2010/09/victor-stanley-spoliation-sanctions-by-circuit-090910.pdf

For further reading:

For further reading Duhl , Gregory M. and Millner , Jaclyn S., Social Networking and Workers’ Compensation Law at the Crossroads (September 2010). Pace Law Review, Vol. 31; William Mitchell Legal Studies Research Paper No. 2010-16. Available at SSRN: http://ssrn.com/abstract=1675026 Kisthardt Mary Kay and Handschu , Barbara, Using Social Network Evidence in Family Court (September 21, 2010). The National Law Journal Paul W. Grimm et al., Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information , 42 AKRON L. REV. 357, 370-71 (2009). Boyden, Bruce E., Can You Be Forced to Turn Over Your Social Network Passwords in a Civil Case?, Marquette University Law School Faculty Blog, http://law.marquette.edu/facultyblog/2010/09/28/can-you-be-forced-to-turn-over-your-social-network-passwords-in-a-civil-case/

Slide 18:

The mainstream social networks

Slide 19:

http://www.socialnetworkingwatch.com/2010/10/twitter-crushing-facebooks-click-through-rate.html

Slide 20:

Millions of unique visitors in August 2010 http://www.socialnetworkingwatch.com/2010/09/twitter-passes-myspace-to-become-third-most-trafficked-social-network.html

More statistics:

More statistics 1 out of 14 people uses Facebook and 1 out of every 8 minutes online is spent on Facebook . 8 of the top 20 most-used websites are social networking sites. Social networking sites accounted for 12 percent of all time spent online in 2010 . More than 93% of information generated today is in electronic format. [Clearly, all of this traffic includes some errors in judgment.]

Typical scenarios *:

Typical scenarios * * These are examples for the purpose of illustration. I do not mean to imply any wrong doing by these particular people.

Privacy settings:

Privacy settings

Privacy settings:

Privacy settings

Blocking “friends”:

Blocking “friends”

Policy:

Policy Social Media Governance http://socialmediagovernance.com/policies.php 10 things you should cover in your social networking policy http://blogs.techrepublic.com.com/10things/?p=875 7 elements of a social media policy that limits your liability http://www.jdsupra.com/post/documentViewer.aspx?fid=ad603f23-368d-4ede-96ff-06c744514f13

Slide 34:

Real-time social searching “The thorniest problem with real-time search is relevancy.” http://news.cnet.com/8301-30684_3-10412712-265.html

Slide 35:

Collecta to Reconfigure February 2, 2011 Collecta has totally changed directions, says Mashable.com in the article, “Startup Collecta Shuts Down Its Product, Working on a New One.” The real-time search engine that launched in 2009 has been closed and the company has decided to concentrate their efforts on new ideas. Most of Collecta’s money is still in the bank and their retaining many of their original employees. http://arnoldit.com/wordpress/2011/02/02/collecta-to-reconfigure/

May I see you in my office… now?:

May I see you in my office… now?

Think twice before clicking “tweet”.:

Think twice before clicking “tweet”.

Tracking tweets:

Tracking tweets To keep up with a keyword on Twitter, try these: TweetDeck HootSuite Monittor

Slide 45:

Public records sites

Public records/background checks:

Public records/background checks Cheap, good, fast: pick two! “No central repository exists for federal, state, and local…criminal records” * With the right preparation and tools, though, you can conduct a successful search. * www.virtualchase.com/articles/criminal_checks_national.html

Fee-based sites:

Fee-based sites Lexis ( SmartLinx and Accurint ) Westlaw OPENonline.com: low-cost people finder NetDetective.net KnowX.com (domain owned by LexisNexis) 1800USSearch.com ChoicePoint (now a part of Lexis)

Free sites:

Free sites criminalsearches.com Pipl.com: comprehensive as far as free sites go Spokeo.com BRB Publications: a portal to other sites PublicRecords.com Phone directories, white pages, reverse look up, switchboard.com, infospace.com Voter registration databases Drivers license databases

Slide 54:

The importance of verifying

This isn’t me:

This isn’t me And this isn’t me

Mistakes happen:

Mistakes happen Verify the person’s identity Never friend someone to dig up info for litigation Check HR policies and forms if it’s a personnel issue; best to have general language in place Cross-check another website or social networking site if possible Search more than one public records directory Document, document, document

To share this presentation:

To share this presentation http://www.authorstream.com Just search for my name and/or the terms social networking legal research

To contact me:

To contact me Mary Jenkins Hamilton County Law Library Cincinnati, Ohio 513.946.5300 IM jenkinscinci mjenkins@cms.hamilton-co.org http://www.linkedin.com/in/maryjenkins