The 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 case-by-case basis.
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 case.
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 policies and terms of use agreements. It is important that the paralegal comply with 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.
Source: Law.com Legal Technology
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