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Sites such as Facebook, MySpace, Twitter and LinkedIn® boast that their technology connects the world's population in ways inconceivable even a decade ago. These avenues of communication provide efficient, simple means for an ever-increasing number of members to share information. The result is the generation of massive proportions of electronic information specific to each user. Information posted to social sites includes not only content, such as messages and photographs, but also a time stamp history of site access and specific activities. With the availability and prevalence of this type of information, it is no surprise that trial attorneys have begun to use evidence collected from social networking sites in their cases. This use of evidence gleaned from social networking sites is on the rise. In a recent case from Connecticut, Bass v. Miss Porter's School, the defendant school sought production of evidence contained in the plaintiff's Facebook profile pertaining to alleged taunting and teasing. Facebook released all "reasonably available data" from the plaintiff's Facebook Web site from a four-month span. Over the plaintiff's objections, the court ordered the plaintiff to produce 1) all responsive Facebook discovery to the defendant and 2) all information produced by Facebook to the court for in camera review. The total production from Facebook amounted to 750 pages of documentation of the plaintiff's activities and communications, which was provided to the court. However, claiming that the majority of records were "immaterial and irrelevant" to the case, the plaintiff produced only 100 pages for the defense. After evaluating the total Facebook production by date, sender, recipient and content, the court found relevant communications in the set of documents not provided to the defendant. The court overruled the plaintiff's objections and ordered full disclosure of the Facebook profile's contents for the relevant period to the defense. Trial attorneys have used evidence from social networking sites to prove criminal intent and enhance sentencing. In People v. Liciaga, the defendant was convicted of second-degree murder and possession of a firearm during the commission of a felony. At trial, the prosecution presented photographs found on the defendant's MySpace profile, which depicted the defendant displaying a gang sign and holding the murder weapon, as evidence of the defendant's intent. Although this evidence was challenged on appeal, the court held the admission was proper and affirmed the defendant's conviction. Similarly, in U.S. v. Villanueva, the court found that post-conviction photos of the defendant holding a semiautomatic gun with a loaded clip discovered on the defendant's MySpace profile could be used as evidence to enhance sentencing. The challenges that litigators face in regard to the quantity and availability of information on social networking sites goes beyond the admission of unfavorable evidence. In another recent case, Wilgus v. F/V Sirius, Inc., the plaintiffs brought a motion for a new trial based on an e-mail received by the plaintiffs' attorney from a juror only four days after a verdict in favor of the defense. The e-mail questioned the attorney's awareness of the plaintiffs' advocacy for illegal drug use on the Internet and suggested that this behavior should have been addressed and cleaned up before the proceedings. In addition, the juror also offered to provide the attorney with "more info and insight." The juror discovered the information that prompted the e-mail via photographs of the plaintiffs on Facebook. After trial, the juror sent friend requests to the plaintiffs on Facebook, which allowed the juror access to the plaintiffs' personal profiles. The court concluded that the juror did not send the friend requests until after the trial, and thus the material could not have influenced the juror during deliberations. Therefore, a new trial was unwarranted. Social networking sites house an abundant source of personal information that may be relevant evidence admissible at trial. As the popularity of these social networking sites continues to increase, so will the challenges that litigators face. Trial attorneys must be aware of this information in order to develop strategies to deal with its implications.
While many thought the legal industry was largely recession-proof, the economic challenges over the past year have dispelled that theory. Legal professionals have witnessed massive layoffs, reduced resources and increased work product demands. Indeed, The National Law Journal recently released a survey of the 250 largest law firms in the country that showed a 4% decrease in employed attorneys overall, with some law firms reducing work force by as much as 26.4%. Despite these bleak figures, hope is on the horizon. According to the Hildebrandt Peer Monitor Economic Index1, litigation is continuing on a positive trend, increasing 1.8% in the third quarter of 2009. This is certainly welcome news for organizations that have been negatively impacted by the economy's effects on litigation. However, there is still a need for firms to make thoughtful and prudent business decisions to ensure the trend continues to move in the right direction. One area of the law firm practice that has received considerable attention is the billable hour. Corporations are increasing the demand for alternative pricing scenarios, especially with regard to discovery services such as processing and review. One such pricing option is a flat or fixed rate (or paying by the gigabyte of data) to provide increased cost predictability. A flat pricing model allows for more accurate forecasting, which provides increased transparency for legal spend – an essential quality corporate counsel use to justify expenditures in tightening budgets. Another pricing scenario is custodian-based pricing, which includes filtering, processing and uploading of data and unlimited use of a review tool. This method may be best suited for cases involving large or unknown data quantity per custodian.It is most important for legal professionals to listen to the needs of customers and modify business practices to meet unanswered demand. With litigation trending back up, continued investments in flexible and creative customer options—both in and out of the courtroom—will reap noticeable returns down the road. 1 www.hildebrandt.com/Publications/Pages/PublicationDetail.aspx Upcoming Webinar: Third Annual ESI Trends Report – ESI Management Is Top of Mind, But Effective Implementation Is Falling Short Ontrack® Prepview™ Trial Preparation Tool Further Simplifies Case Management Keep Up to Date with Kroll Ontrack Social Media Meet our representatives at the following events:
Visit www.krollontrack.com/upcoming-events/ for more information on these events and others.
This newsletter was written by Kelly Kubacki, Kroll Ontrack Law Clerk, with assistance from Regina Jytyla, Kroll Ontrack Managing Staff Attorney. Ms. Kubacki can be contacted by writing to kkubacki@krollontrack.com. For more information about electronic discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or visit www.krollontrack.com.
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