Paralegals investigate social networks
March 25, 2009 By: Christine Flynn
x) he core of a successful paralegal is the ability to review a file and
identify what documents or witnesses will strengthen a case with respect to
settlement negotiations or trial. In years past, paralegals gathered this
information and documentation via written discovery from various medical providers,
academic institutions and employers. However, these avenues are no longer the only
methods utilized by paralegals.
Instead, the ever-changing world of technology continues to directly impact
the legal profession. Paralegals now also turn their attention to the
cyberworld, including social and professional networking sites, to investigate personal
injury claims. Oftentimes, these sites can provide a deluge of data,
including specific communications and entries concerning parties to the action.
So how do paralegals obtain this information and who or what is discoverable?
The answers to these questions seem to vary on a state-by-state and
The growth in popularity in recent years of social and professional
networking sites such as MySpace and Facebook is staggering. Generally, these sites are
free. Thus, it is rare to find an individual who does not have some type of
personal Web page. These social networking services provide members with the
opportunity to create unique personal profiles online in order to communicate
and network with friends, former classmates or colleagues. The sites link
members both nationally and internationally. Members post facts and anecdotes to
chronicle their daily lives. Generally, an individual can set up a personal Web
page and allow members to review specific postings.
Some individuals, in an effort to protect content, restrict access to Web
pages by marking pages as private, allowing only approved friends to view
entries. Other individuals, however, do not mark profiles as private, thus allowing
the general public access to view postings. This information trail of sorts has
raised an interest in the legal community with respect to publicly accessible
information stored on profile pages.
The Web page postings on social and professional networking sites contain a
plethora of information on an individual. This information can, in some
instances, be used by counsel in the preparation or cross-examination of plaintiffs,
defendants or witnesses. These postings often include personal background
information, photographs, videos, blogs, hobbies and e-mails. The screening of
profiles by paralegals opens various doors with respect to the locations or
day-to-day activities of plaintiffs, defendants or witnesses.
For example, perhaps a plaintiff in a litigation claim is alleging ongoing
injuries resulting in pain and restriction of daily activities. A paralegal,
following review of the appropriate guidelines and laws with respect to obtaining
records from social networking sites, issues a request for information. This
discovery request reveals that although the plaintiff is alleging the
inability to complete certain activities, he is, in fact, playing baseball and working
for a moving company. This information is confirmed by various photographs
the plaintiff has posted on his Web page.
Obviously, this type of information can dramatically change the face of a
The various social networking sites each have privacy policies that set out,
in general terms, what information is collected and what can be done with the
information. These privacy policies are generally enforced by federal
agencies, including the Federal Trade Commission or the state Attorney General's
Office under various statutes. Generally, the legal departments of the various
social networking sites will not disclose personal information to a third party
unless the disclosure is in response to a valid subpoena, search warrant or
other legal process. Additionally, a social network will also provide the
information to protect its rights or to protect the safety of members of the public
and users of the service. Thus, requests for information concerning user
profiles must be submitted with proper legal service and be applicable under one of
the above requirements.
As noted, although some information on social networking sites may be public,
oftentimes the profile of an individual will be marked as private, thus
requiring a formal written request, subpoena or court order. As such, when issuing
a request for information contained on a social networking page, a paralegal
should include the following information:
• complete contact information of requesting party;
• full name, birth date and address for the individual from whom you are
seeking the profile;
• e-mail address of the user;
• user ID or Group ID number;
• period of activity.
Generally, with a valid subpoena, the agency will provide basic subscriber
information and IP logs for a user account. Any additional information will
require the consent of the account owner.
Generally, the social networking site will require that the user supply a
signed statement, or authorization, which must accompany a subpoena. In the
alternative, a court order may be required compelling the owner of the account to
consent to the disclosure of e-mails and additional information.
As always, the first step a paralegal should take when embarking on this
process is to review and discuss the written request with the supervising
attorney. The paralegal and attorney should work together to identify exactly what
information is being sought, the reason it is being sought and the relevance to
the pending litigation. Thereafter, the paralegal should request and consult
the terms and conditions of the social networking site, which outline the
all requirements set forth therein.
Third, when uncertain about specific requests, the paralegal should contact
the security department, legal department or civil care team of the social
networking site via e-mail or telephone with respect to specific investigative
needs, questions or issues. The security team or civil care team will provide
guidance under not only the terms and conditions agreement, but also the law in
the specific applicable state.
The role of social and professional networking sites has opened up yet
another door in the field of electronic discovery. As courts continue to wrestle
with cases involving social networking discovery issues, it is expected that this
largely uncharted area will continue to grow.
It is also expected that expert testimony will be required in the future with
respect to issues including management of social networking sites and a
user's right to privacy, as well as authentication of Web pages. In the meantime,
however, paralegals need to be mindful of the existence of this discovery tool
with respect to the evaluation of a case.
That said, paralegals should not lose sight of the laws, rules and
regulations with respect to the proper subpoena and use of this information during the
course of discovery and trial of a case.
Christine Flynn is a defense litigation paralegal at the law firm of Swartz
Campbell. She has more than 20 years' experience in the field. She serves as
chairwoman of the litigation committee of the Philadelphia Association of
Paralegals. She is a member of the ethics board as well as the ad hoc committee for
access to legal services at NFPA. Flynn also serves on the Paralegal Studies
Advisory Board at the Community College of Philadelphia. This story was first
published in the Legal Intelligencer, an affiliate of the Daily Business
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