Thursday, October 20, 2011

Social Complicates Legal Discovery

While many law firms and attorneys have begun leveraging pertinent social platforms like LinkedIn and specific practice area influential blogs, the advent of social has also complicated the discovery process in court. Discovery is the process whereby lawyers generate evidence pertinent in the case from the opposing side, and the process is getting complicated with the rise of social media. One of the biggest challenges, according to the “2011 Mid-Year e-Discovery Update” from law firm Gibson Dunn, is the issue of authentication. That's the process of making sure that evidence extracted from social media is real, and also hasn’t been tampered with by changes made since the timeframe relevant to the case. The firm pointed to a recent case from Maryland where a murder conviction was overturned because the “State failed to supply the additional extrinsic evidence necessary to properly attribute MySpace profile and postings to the alleged author; simply confirming that the profile photo, nickname and birthday were the author's was insufficient because ‘anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password.’” The findings don't necessarily mean social media users get away with murder. In this case, the court suggested several possible methods for authenticating social media evidence, including asking the alleged owner of the account about the profile or posting under oath, searching the alleged owner’s hard drive and Internet history to determine whether that computer was used to originate the profile or post, and obtaining “information directly from the social networking website that links the establishment of the profile to the person who allegedly created it, and also links the posting to the person who initiated it.” Of course this has an impact on privacy, but the law firm added that the general trend is against any presumption of privacy, as “Courts continued to find that individuals generally do not have a reasonable expectation of privacy, regardless of activated privacy settings, in the information they submit to social networking sites.” That means courts can order social media users to provide passwords, user names and log-in names for any and all social media platorms and order users not to delete or alter existing posts.

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