Mining Social Media Gold

The widespread use of social media has made it easier to gather evidence for many types of litigation, and the matrimonial field is no exception. The American Academy of Matrimonial Lawyers reported in 2010 that 81% of the top U.S. divorce attorneys it surveyed noted an increase in the use of evidence gathered from social networks, with Facebook being the most commonly cited source of valuable evidence. See “Big Surge in Social Networking Evidence Says Survey of Nation's Top Divorce Lawyers,” www.aaml.org/about-the-academy/press/press-releases/e-discovery/big-surge-social-networking-evidence-says-survey- (last accessed 4/25/11).

The value to litigants of checking an adverse party's social networking communications cannot be overlooked. Evidence found there may be admissible at trial, or may lead to admissible evidence. Lawyers, private investigators and litigants themselves may access others' social networking data under certain circumstances, but limitations apply. If information is going to be obtained from public and semi-private social media, counsel must make sure that it is gathered in a lawful and ethical manner.

Public Pages

Accessing public pages of social networking sites ' those that do not require a password or permission from the poster in order to enter them ' is not problematic. The information is intended to be open to the public, so anyone, including litigants, may look at it.

According to the New York State Bar Association (NYSBA), lawyers are just like any member of the public in this regard. Its Committee on Professional Ethics issued an opinion in 2010 in which it compared accessing information on electronic forums with doing so through more traditional means, such as by researching print media or using a subscription research service like Nexis. The ethics committee's Opinion 843 states, “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.”

The Use of Subterfuge

Publicly accessible material is one thing, but semi-private information is another. While people may post certain information for all to see on Facebook, MySpace or other sites, they often hide other information, which they make available only to those who have been given permission ' for example, to those they have “friended” on Facebook. It is here where lawyers must tread lightly or the information they gather will be held inadmissible, they may face professional disciplinary action and they may be subject to suit for breach of the web page author's privacy.

The NYSBA's Opinion 843 qualifies the right of lawyers to obtain information informally from social networking sites by prohibiting subterfuge ' such as pretending you are simply another person interested in somebody's favorite band, Phish ' to gain access to hidden data. The opinion states: “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 of the New York Rules of Professional Conduct (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 non-lawyers acting at their direction).” New York State Bar Association Committee on Professional Ethics, Formal Op. 843, Sept. 10, 2010, available at www.nysba.org/AM/Template.cfm?Section=Ethics_Opinions&template=/CM/ContentDisplay.cfm&ContentID=43208 (last accessed 4/26/11).

The New York City Bar also issued a formal opinion on the subject in September 2010. The Association of the Bar of the City of New York Committee on Professional Ethics, Formal Op. 2010-2, Sept. 2010. The opinion was prompted by the submission of this question: “May a lawyer, either directly or through an agent, contact an unrepresented person through a social networking website and request permission to access her web page to obtain information for use in litigation?”

The Committee began its response by noting that lawyers are increasingly looking to social networking sites for information, and that “[i]n light of the information regularly found on these sites, it is not difficult to envision a matrimonial matter in which allegations of infidelity may be substantiated in whole or part by postings on a Facebook wall.” Obviously, the reasons are many for wanting to get at all of the information available on social networking sites. However, the City Bar's ethics committee went on to prohibit its members from making “friending” requests (or asking for comparable access to other social networking forums) without disclosing to the owner of the web page (or other media format) the reason for making the request.

The City Bar's ethics committee explained its position:

[I]n seeking access to an individual's personal information, it may be easier to deceive an individual in the virtual world than in the real world. For example, if a stranger made an unsolicited face-to-face request to a potential witness for permission to enter the witness's home, view the witness's photographs and video files, learn the witness's relationship status, religious views and date of birth, and review the witness's personal diary, the witness almost certainly would slam the door shut and perhaps even call the police.

In contrast to a real world meeting, people who “meet” in the “virtual” world of social networks can find it easier to hide their true identities or intentions and, conversely, often reveal more of themselves than they might disclose in person. Exploiting these realities through trickery would be unethical, stated the Committee, and attorneys should “seek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful 'friending' of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual's social networking page.”

Non-Public Information ' Get a Court Order

The leading New York case on the subject of access to social networking information that is not open to the public at large is Romano v. Steelcase Inc., Index No. 2233/2006 (Sup. Ct. Suffolk Co., Sept. 21, 2010). Steelcase involved a worker's suit against her employer for damages resulting from a workplace injury. She claimed loss of enjoyment of life as one of her bases for recovery.

By order to show cause, defendant Steelcase sought access to the plaintiff's current and historical Facebook and MySpace pages and accounts, including private portions of them and all deleted pages. The company's attorneys, having looked at her public pages on these social media forums, believed the plaintiff had placed information on her pages that was inconsistent with her claims of injuries so extensive they severely impacted her ability to enjoy life. For example, among the pieces of information available on the plaintiff's public pages were statements that she had traveled to Florida and Pennsylvania after she was injured. The defense attempted to elicit answers concerning the cached pages during deposition, but was rebuffed. When served with a Notice for Discovery and Inspection seeking authorization to view the pages the plaintiff refused.

The court observed that the information in the plaintiff's Facebook and MySpace pages was both material and necessary to the defense, and was thus subject to full disclosure under Civil Practice Law & Rules (CPLR) ' 3101. Having placed her physical state into controversy, the plaintiff could not shield from disclosure material that could prove necessary to the defense of the action. See Hoening v. Westphal, 52 NY2d 605 (1981). “Preventing Defendant from accessing ' Plaintiff's private postings on Facebook and MySpace would be in direct contravention to the liberal disclosure policy in New York State,” said the court. Additionally, the plaintiff could not have had any reasonable expectation of privacy in her postings, as information placed on social networking forums is, by definition, meant to be shared. “Indeed,” stated the court “' MySpace warns users not to forget that their profiles and MySpace forums are public spaces, and Facebook's privacy policy set[s] forth, inter alia, that '[y]ou post User Content ' on the Site at your own risk. Although we allow you to set privacy options that limit access to your pages, please be aware that no security measures are perfect or impenetrable.'” The plaintiff was therefore ordered to execute authorizations, in accordance with Facebook and MySpace policies, for the defense to access her pages, including old and/or deleted material.

What about subpoenaing Facebook or MySpace to get access to private postings? Don't count on it. In Crispin v. Christian Audigier Inc., 717 F. Supp. 2d 965 (2010), the U.S. District Court for the Central District of California refused to compel production of this type of information, which the defense had subpoenaed from Facebook and MySpace, among others. The court there concluded that these entities were prohibited from disclosing the information sought because they were covered by the Stored Communications Act (SCA) (18 U.S.C. ” 2701 ' 2712) which, with few exceptions, shields from disclosure information stored by providers of “electronic communication services” (ECS). Because this area of law is new, and the advent of social media like Facebook and MySpace postdates the Stored Communications Act, Crispin is not likely to be the final word on the subject. Still, the case does not bode well for those seeking to obtain stored private information directly from a social networking site. Success is more likely if a court order is sought directing the opposing party to authorize access to his or her pages.

We continue this discussion in next month's issue.

Janice G. Inman is Editor-in-Chief of this newsletter.

The widespread use of social media has made it easier to gather evidence for many types of litigation, and the matrimonial field is no exception. The American Academy of Matrimonial Lawyers reported in 2010 that 81% of the top U.S. divorce attorneys it surveyed noted an increase in the use of evidence gathered from social networks, with Facebook being the most commonly cited source of valuable evidence. See “Big Surge in Social Networking Evidence Says Survey of Nation's Top Divorce Lawyers,” www.aaml.org/about-the-academy/press/press-releases/e-discovery/big-surge-social-networking-evidence-says-survey- (last accessed 4/25/11).

The value to litigants of checking an adverse party's social networking communications cannot be overlooked. Evidence found there may be admissible at trial, or may lead to admissible evidence. Lawyers, private investigators and litigants themselves may access others' social networking data under certain circumstances, but limitations apply. If information is going to be obtained from public and semi-private social media, counsel must make sure that it is gathered in a lawful and ethical manner.

Public Pages

Accessing public pages of social networking sites ' those that do not require a password or permission from the poster in order to enter them ' is not problematic. The information is intended to be open to the public, so anyone, including litigants, may look at it.

According to the New York State Bar Association (NYSBA), lawyers are just like any member of the public in this regard. Its Committee on Professional Ethics issued an opinion in 2010 in which it compared accessing information on electronic forums with doing so through more traditional means, such as by researching print media or using a subscription research service like Nexis. The ethics committee's Opinion 843 states, “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.”

The Use of Subterfuge

Publicly accessible material is one thing, but semi-private information is another. While people may post certain information for all to see on Facebook, MySpace or other sites, they often hide other information, which they make available only to those who have been given permission ' for example, to those they have “friended” on Facebook. It is here where lawyers must tread lightly or the information they gather will be held inadmissible, they may face professional disciplinary action and they may be subject to suit for breach of the web page author's privacy.

The NYSBA's Opinion 843 qualifies the right of lawyers to obtain information informally from social networking sites by prohibiting subterfuge ' such as pretending you are simply another person interested in somebody's favorite band, Phish ' to gain access to hidden data. The opinion states: “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 of the New York Rules of Professional Conduct (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 non-lawyers acting at their direction).” New York State Bar Association Committee on Professional Ethics, Formal Op. 843, Sept. 10, 2010, available at www.nysba.org/AM/Template.cfm?Section=Ethics_Opinions&template=/CM/ContentDisplay.cfm&ContentID=43208 (last accessed 4/26/11).

The New York City Bar also issued a formal opinion on the subject in September 2010. The Association of the Bar of the City of New York Committee on Professional Ethics, Formal Op. 2010-2, Sept. 2010. The opinion was prompted by the submission of this question: “May a lawyer, either directly or through an agent, contact an unrepresented person through a social networking website and request permission to access her web page to obtain information for use in litigation?”

The Committee began its response by noting that lawyers are increasingly looking to social networking sites for information, and that “[i]n light of the information regularly found on these sites, it is not difficult to envision a matrimonial matter in which allegations of infidelity may be substantiated in whole or part by postings on a Facebook wall.” Obviously, the reasons are many for wanting to get at all of the information available on social networking sites. However, the City Bar's ethics committee went on to prohibit its members from making “friending” requests (or asking for comparable access to other social networking forums) without disclosing to the owner of the web page (or other media format) the reason for making the request.

The City Bar's ethics committee explained its position:

[I]n seeking access to an individual's personal information, it may be easier to deceive an individual in the virtual world than in the real world. For example, if a stranger made an unsolicited face-to-face request to a potential witness for permission to enter the witness's home, view the witness's photographs and video files, learn the witness's relationship status, religious views and date of birth, and review the witness's personal diary, the witness almost certainly would slam the door shut and perhaps even call the police.

In contrast to a real world meeting, people who “meet” in the “virtual” world of social networks can find it easier to hide their true identities or intentions and, conversely, often reveal more of themselves than they might disclose in person. Exploiting these realities through trickery would be unethical, stated the Committee, and attorneys should “seek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful 'friending' of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual's social networking page.”

Non-Public Information ' Get a Court Order

The leading New York case on the subject of access to social networking information that is not open to the public at large is Romano v. Steelcase Inc., Index No. 2233/2006 (Sup. Ct. Suffolk Co., Sept. 21, 2010). Steelcase involved a worker's suit against her employer for damages resulting from a workplace injury. She claimed loss of enjoyment of life as one of her bases for recovery.

By order to show cause, defendant Steelcase sought access to the plaintiff's current and historical Facebook and MySpace pages and accounts, including private portions of them and all deleted pages. The company's attorneys, having looked at her public pages on these social media forums, believed the plaintiff had placed information on her pages that was inconsistent with her claims of injuries so extensive they severely impacted her ability to enjoy life. For example, among the pieces of information available on the plaintiff's public pages were statements that she had traveled to Florida and Pennsylvania after she was injured. The defense attempted to elicit answers concerning the cached pages during deposition, but was rebuffed. When served with a Notice for Discovery and Inspection seeking authorization to view the pages the plaintiff refused.

The court observed that the information in the plaintiff's Facebook and MySpace pages was both material and necessary to the defense, and was thus subject to full disclosure under Civil Practice Law & Rules (CPLR) ' 3101. Having placed her physical state into controversy, the plaintiff could not shield from disclosure material that could prove necessary to the defense of the action. See Hoening v. Westphal , 52 NY2d 605 (1981). “Preventing Defendant from accessing ' Plaintiff's private postings on Facebook and MySpace would be in direct contravention to the liberal disclosure policy in New York State,” said the court. Additionally, the plaintiff could not have had any reasonable expectation of privacy in her postings, as information placed on social networking forums is, by definition, meant to be shared. “Indeed,” stated the court “' MySpace warns users not to forget that their profiles and MySpace forums are public spaces, and Facebook's privacy policy set[s] forth, inter alia, that '[y]ou post User Content ' on the Site at your own risk. Although we allow you to set privacy options that limit access to your pages, please be aware that no security measures are perfect or impenetrable.'” The plaintiff was therefore ordered to execute authorizations, in accordance with Facebook and MySpace policies, for the defense to access her pages, including old and/or deleted material.

What about subpoenaing Facebook or MySpace to get access to private postings? Don't count on it. In Crispin v. Christian Audigier Inc. , 717 F. Supp. 2d 965 (2010), the U.S. District Court for the Central District of California refused to compel production of this type of information, which the defense had subpoenaed from Facebook and MySpace, among others. The court there concluded that these entities were prohibited from disclosing the information sought because they were covered by the Stored Communications Act (SCA) (18 U.S.C. ” 2701 ' 2712) which, with few exceptions, shields from disclosure information stored by providers of “electronic communication services” (ECS). Because this area of law is new, and the advent of social media like Facebook and MySpace postdates the Stored Communications Act, Crispin is not likely to be the final word on the subject. Still, the case does not bode well for those seeking to obtain stored private information directly from a social networking site. Success is more likely if a court order is sought directing the opposing party to authorize access to his or her pages.

We continue this discussion in next month's issue.

Janice G. Inman is Editor-in-Chief of this newsletter.