The fast-shifting social media landscape is creating new challenges for lawyers, particularly when it comes to data collection and preservation in the U.S. legal system.
On Friday, at Georgetown Law’s 12th Annual Advanced eDiscovery Institute conference, a group of panelist attempted to dissect the many quandaries and ethical traps that social media platforms are creating in courtrooms across the nation and inside legal departments at the largest companies.
One panelist, U.S. Magistrate Judge Kristen Mix, who sits in Colorado, said the first thing lawyers need to remember is that most judges don’t have Facebook pages, and may know about how the site works only through their grandchildren’s explanations.
“Our understanding is nowhere near as thorough as complete as if we were users,” said Mix.
Still, she said that the case law is developing rapidly to the point that something posted on a social media site like Facebook is now most often subject to discovery. Moreover, Mix said she once had occasion to refer a lawyer to the state bar who allowed a client to destroy social media evidence.
With regard to lawyers who allow clients to delete social media accounts, she said, “You better pray to god, that some judge in the future is going to say whatever they had on the social media is not relevant to the case.”
Mix added, “You only have one law license, and you can lose it over this stuff.”
As these technologies have emerged, new pitfalls have sprouted up: For instance, during jury selection, lawyers will often google a person. But looking at a person’s LinkedIn page can trigger a notification to that person that you’ve viewed them, and possibly a request from the service to connect with them. One audience member asked if either situation violates the prohibition on communicating with potential jurors?
“It may be malpractice not to do it,”said retired U.S. Magistrate Judge John Facciola, who was in the audience.
Facciola said in the past year, several lawyers have caught potential jurors telling “big fat whopping lies” simply by using google and other the internet to do research. In one case, a potential juror had a previous relationship with the defendant, which was never disclosed, he said.
Michelle Greer Galloway, of Cooley who moderated the discussion, said, “For most of us, when we think of social media, the top three choices are Facebook, LinkedIn, and Twitter … but of course, there are thousands.”
Many new platforms consist of “ephemeral data,” as pioneered by Snapchat and now used by many social media platforms, in which messages are designed to be impermanent. She compared it to Mission Impossible, in which the phone or tape reel self-destructs after a message is delivered.
However, people have devised ways to hack the system and make impermanent messages permanent — through screen shots or forwarding messages, for instance. As a result, new platforms have cropped up to block these hacks and keep the messages impermanent.
Lawyers trying to collect evidence from these sites may find it tricky to keep up with all the changes.
“The technologies are changing all the time, so the way that they may structure or store data … may change all the time as they’re improving their service,” said another panelist Lauren Schwartzreich, eDiscovery counsel at Littler Mendelson.