I See What You Did There: The Use of Social Networks to Gather Evidence

By Brown, Diana B.; Robertson, T. J. et al. | Southern Law Journal, Fall 2012 | Go to article overview

I See What You Did There: The Use of Social Networks to Gather Evidence


Brown, Diana B., Robertson, T. J., Sullivan, Laura L., Southern Law Journal


I. INTRODUCTION

A prompt and thorough factual investigation is key to successfully prosecuting or defending a claim. Indeed, such an investigation can bring clarity to confounding events and contradictory testimony and thereby prevent claims from ripening into lawsuits at all. It is always important to frame the investigation broadly as a proper investigation examines more than the actions of the injured party (i.e., the potential plaintiff). It is also important to consider others whose actions played a role in the events - that is to say, others who may be held in part responsible for the damages incurred.

In addition, while conducting the investigation, it is important to avoid becoming caught up in the issue of the admissibility of evidence. During a thorough investigation, exploring inadmissible evidence, such as hearsay, may lead to other relevant and admissible facts. Thus, it is important to be mindful of admissibility issues, but not feel constrained by them in the early stages of investigation. One should also be mindful of any documents created or statements taken during the investigation given their potential evidentiary implications. For instance, consider whether the documents and statements will ultimately have to be produced to the plaintiff, or whether the documents and statements can be protected as work product prepared in anticipation of litigation.

Social networking sites have created a treasure of opportunities when it comes to investigations. Individuals seem to take on a more carefree persona online, and this relaxed atmosphere can provide the details an investigator might need to prevail in any suit. Along with these fertile new hunting grounds comes some uncertainty as courts struggle to apply outdated rules of evidence to information obtained through social media.

II. Social Networking Sites

Social networking sites offer a wealth of readily available information - without the necessity of hiring a private investigator. A social network site is a web-based service that allows individuals to (1) construct public or semipublic profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those made by others in the system.1 Social networking sites may contain a plethora of information and, potentially, an abundance of incriminating, exculpating, impeaching, and mitigating evidence.

For instance, a MySpace page contains descriptions of the owner's recent activities, work history, education background, current and former relationships, and even thoughts on current events, including, perhaps, the accident in question or pending claims. MySpace pages may also include photographs, videos, and the names of potential witnesses. Likewise, an examination of an individual's Twitter account can tell you what the owner has recently said, who follows the owner, who the owner is following, and it may include comments from third parties.

Another good (or bad) thing about social networks is that friends or acquaintances of the page's owner may freely post information regarding others, including photos, videos, and comments. Thus, when a search of the intended user's posts and photos reveals little of interest, it is often fruitful to search the intended user's friends' posts and photos as well.

Social networking web sites have aptly been described as follows:

In a bygone era, members of a community would gather at the local soda fountain to "chew the fat" - discuss matters of local politics, share the latest gossip, or complain about the weather. These days, millions of people are engaged in the same conversations not over root beer floats at soda fountains, but over keyboards in online communities known as social-networking web sites.2

At a fundamental level, social-networking sites are online networks of individuals linked through personalized Internet web pages. …

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