Social networking websites have taken the world by storm. On MySpace and Facebook, users lovingly chronicle the intimate details of their lives, post their current relationship status and feelings, provide spontaneous opinions, and upload off-the-cuff photographs. Even the more professional networking site LinkedIn, is now trying to become more social by adding a blog application. Unfortunately, users often post without considering the trail of evidential bread crumbs they leave in their wake. Just last week, Virgin Atlantic Airways fired 13 members of a cabin crew after they allegedly posted inappropriate comments on Facebook. And today, investigators visit these sites as a matter of course when looking into an individual for purposes of employment, college admission, background checks for criminal activity, and so on.
This growing use of social network information raises two important questions for the corporate world in this new age of electronic discovery:
1. Are social networking sites accessed using an employer's computer, fair game when it comes to electronic discovery and document production?
2. If social networking pages are produced as part of electronic discovery, would this information then be admissible in court?
First, employees will notice that their personal workplace computers sometimes "remember" their MySpace or Facebook password -- not to mention gmail, hotmail, yahoo, and other accounts -- when they sign on. That's because the website browser takes note of and saves the password. But here's the catch. Because the password exists on the employer's hard drive, that password and therefore access to the social networking page, are literally within the possession, custody, and control of the employer. With the right IT know-how, the employer can easily access the site. The unanswered question is, is the social network page in the legal "possession, custody and control" of the employer? What happens when the employee or employer gets sued, and the social networking page becomes responsive to document requests?
It may depend on whether the adverse party is the employer or a third entity. In the case of the employer being sued, perhaps the employee is alleging discrimination in the workplace, and has a discussion on his Facebook page about how he made up the whole story. Does the employer have the right to access the Facebook page on its own? If not, does the employer have the right to demand images of the page in their document requests? The employer's argument would be that by accessing the page at work, the employee waived any right to claim that the site is private and personal. An even broader argument is that by posting personal information on a world-wide web, the employee has automatically given up any pretense of personal privacy at all, to the world at large.
A different implication arises if the employer is being sued by a third party for, say, legal malpractice. The third party does not have direct access to the Facebook page or the password. Does the third party have the right to request the employee's Facebook website through document requests to the employer? The employer, who has the password in its records, may be able to access the Facebook page. The answer hinges on whether the Facebook page is in the possession, custody or control of the employer, thereby requiring the employer to produce it to the third party.
Second, even assuming that the Facebook page must be produced, it still may not be admissible in court. Because websites are amorphous creatures, one must take a "snapshot" of the page in order to preserve a site as it existed at a particular moment. This process raises numerous evidentiary issues under the admissibility rules for standard electronically stored information. This includes considerations of relevancy, hearsay, authenticity, the "best evidence" rule and undue prejudice. See Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. May 2007).
In sum, more people sign up for social networking websites every day. It is only a matter of time before attorneys routinely request social networking pages during certain types of lawsuits. The law is still uncertain as to when and whether such pages must be produced, and whether those pages are going to be admissible in court. Employers should be mindful of these issues, and should impress upon their employees the dangers of posting inappropriate materials on their social networking pages. Similarly, employees should be aware that what they post -- even if they explicitly limit access to their page to friends only -- may someday come back to haunt them.