Discovering Social Networks 

Social networking sites are more frequently being referenced in litigation and the requirement to disclose information from such sources is becoming an increasingly important issue.

 

The duty to identify, protect, preserve, and ultimately produce electronically stored information (ESI) that is relevant to litigation is often a contentious legal area.¹ The proliferation of social media and online networking portals widen the scope for finding relevant ESI and demands appropriate consideration. While well-crafted policies related to e-mails, document retention, and social media can mitigate risks surrounding ESI, the growing relevance of social media in litigation remains a developing issue that poses several challenges for the discovery and preservation of evidence.

How to be "Social"

Facebook MySpace DESCRIPTION Personal social networking sites that allow users to set up profiles, message one another, join groups, and share photographs and information. STATISTICS 400,000,000 Facebook users2 185,000,000 MySpace users3

LinkedIn DESCRIPTION Social networking site for professionals permitting messaging and forum/group discussion. STATISTICS 65,000,000 members in over 200 countries4

Twitter DESCRIPTION Real-time information network where users send messages (less than 140 characters) to their "followers" through "tweets." STATISTICS 100,000,000 users5

YouTube DESCRIPTION Sharing portal where users can upload videos ranging from movies, music, legal advice, opinions, etc., and provide comments to one another. STATISTICS 24 hours of video is uploaded every minute6

How Social Are Canadians?

Facebook 7,000,000 active users7

MySpace 4,465,000 unique visitors/month7

LinkedIn 2.40% of site traffic is from Canada7

Text Messages 122,000,000 messages sent per day8

In March 2009, the Office of the Privacy Commissioner of Canada commissioned a study to gain insight on privacy issues and potential risks of social networking sites. The results showed that nearly all participants “post information or messages about themselves or their activities; read information or messages from their friends; browse pictures that friends or others post; and post pictures.”⁹While this finding supports the statistics shown above, it poses several challenges to be considered during the discovery process.

 

Consider a seemingly innocuous profile created by an individual to maintain contact with friends or associates. Inevitably, the willingness of participants to post their personal information for public viewing erodes their personal privacy and makes posted information potentially discoverable in both criminal and civil actions.

 

Additionally, instances have been reported, particularly in the US, where social networks have been used to perpetrate fraudulent acts. Conversely, law enforcement officials have utilized social networking sites to track down individuals and trace assets for recovery purposes.

 

Information shared across social networks could also be devastating to both individuals and companies, as malicious or impudent statements could be taken out of context (e.g., disgruntled employees or management making or responding to comments about a company), or reveal privileged or confidential information.

 

 

Managing the Risks of Social Media

 

When improperly used and not moderated, social media postings could result in content that may be harmful to companies. Postings by individuals that are linked to their employer may:

 

• Be defamatory
• Provide copyrighted logos to unauthorized parties who may attempt to commit fraud
• Compromise client confidentiality
• Indicate a conflict of interest
• Disclose proprietary materials or knowledge to competitors and others
• Result in privacy breaches and inappropriate disclosure of personal data.

While many companies have policies surrounding the use of e-mail, fewer organizations extend those same safeguards to text, instant, and social media messages. A recent study by the Center for Technology in Government a the University of Albany – SUNY¹⁰ summarized that social media policies should ensure there are adequate provisions to address important considerations, such as:

• Employee access: Specify the number of people who can access sites or limit the types of sites they may access
• Account management: Select a suitable custodian to oversee how many accounts are created and for what purpose, and who administers these accounts
• Acceptable use: Have policies that outline how employees should use corporate resources for personal interests and what the penalties are for violations
• Employee conduct: Include a reference to what is considered an ethical code of conduct by the company’s standards or the individual’s professional association
• Content: Establish who approves and manages the corporate site content. For personal accounts, ensure employees posting professional opinions include disclaimers
• Security: Ensure that proper measures are taken to protect confidential or personally identifiable information
• Legal issues: Consider records management and retention schedules for posted content
• Citizen conduct: Make sure that if messages are directly posted they are routinely reviewed by someone to ensure they do not contain defamatory or offensive statements or material.

 

Most importantly, companies should ensure that employees are aware of the policy and that it is enforced. Given the explosion of social media and online networking portals, the scope for creating potentially relevant ESI should be carefully managed through well-crafted social media policies and awareness.

Relevancy of Social Media

Despite the risks, social media was intended to be a good thing and its proliferation presents several opportunities for litigants, enforcement agencies, and forensic professionals to embrace technology. Justice Brown explained in Leduc v. Roman¹¹ that “Given the pervasive use of [social networking sites], it is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on the party’s Facebook profile may be relevant to allegations made in the pleadings.” 
 

Simply put: If information is posted on social network sites, it very well may be discoverable. Information contained in social media can be used in several ways, including the following:

 

Accumulating Supporting or Contradictory Information

Information posted on social media sites can be especially useful and relevant in cases where personal actions and behaviour are relevant. While cases, such as divorce proceedings,¹² personal injury, criminal cases, or workers’ compensation claims have been noted as being relevant to this issue, other more corporate-related matters will likely also be affected by information found on social media sites.

Since 2007, several cases have been brought before provincial courts where social media information contradicts claims being made.¹³ Photographs posted or comments made may contradict or support a claim made by one of the parties. In a recent criminal case in Nova Scotia, Justice Campbell considered the inferences shown from Facebook pictures and captions as part of circumstantial evidence against an accused.¹⁴ Additionally, it could be used to challenge the credibility of plaintiffs seeking damages.

 Establishing Relationships
The inter-personal connections that are the raison d’être of social networking sites can be quite informative in uncovering links and associations between various parties. Forensic professionals can often use relationships found through Internet postings and sites to establish tentative relationship databases upon which to gather additional evidence. Law enforcement agencies have used social networking sites effectively as a source of information to recover assets and uncover the whereabouts of alleged criminals and fraudsters.

Facilitating Settlement
During the investigation and information gathering stage, information uncovered could be used to settle a plaintiff’s claim and potentially lead to timely and efficient settlements.

Obtaining Background Information on Litigants, Witnesses, and Jurors
Justice Brown’s ruling permitted cross-examination in respect of a defendant’s Facebook profile in order to explore an individual’s post-accident lifestyle, which suggested that the defendant’s claims were less serious than the suit implied.

Human resource professionals typically use social networks to obtain background information on potential hires.

In the US, legal counsel use social networking sites to evaluate and profile jurors, and often structure the wording of their arguments around jurors’ apparent sensitivities. 

Similarly, expert witnesses who maintain a social networking profile could find that the behaviours, relationships, and network shown in their online profile are used to question their independence or competency.

Discovery and Social Media

Justice Brown’s comments indicate that social media as an information source should be considered in the early stages of the discovery process. In this regard, counsel should address the preservation of ESI with their clients to identify all ESI by type and location (including online profiles) that are within their possession or control, and upon which they intend to use to support their claims or defences.

The amount of information contained in social networking sites and the continuously changing nature of the data can be staggering and poses several challenges:

1) Challenge: Reasonable Expectation of Privacy
When posting tweets,15 wall messages, photos, and other information online, does the user reasonably expect privacy of their disclosures?

While most social network users would say yes, Justice Rady found in Murphy v. Perger.16 that the plaintiff could not have a serious expectation of privacy given that they granted 366 people access to the private site. Consequently, she ruled that the defence should be provided copies of the web pages posted.

This and similar rulings raise the question of the effectiveness of privacy arguments, but presumably the facts of each case will be important to each situation. In addition, the whole area of privacy and social networking sites is being subjected to close scrutiny by Canada’s Privacy Commissioner. There will be ongoing developments in this area.

2) Challenge: Can Personal Social Media Pages Be Produced?
The revised Ontario Rules of Civil Procedure have explicitly confirmed that “data and information in electronic form,” and by extension, the content of online profiles, are documents, and, if relevant to an issue, must be produced.17 Other Canadian provinces have enacted similar interpretations.

The simplest way to preserve this information is through screen shots, web page printouts, archiving, or saving pages as HTML files. It is preferable that the method of preservation be verified by a specialist in forensic technology.

Courts may in certain circumstances order service providers to provide information stored on their sites, and at least some social networking sites publicly acknowledge that a subpoena or court order issued to them is an acceptable reason for disclosure of user information.19

In the case of deleted pages, there are some services that specialize in archiving snapshots of pages. The Internet Archive Wayback Machine, for example, contains almost 2 petabytes of archived data and is currently growing at a rate of 20 terabytes per month.20

3) Challenge: Proving Online Identities & Ownership
Some users may not use their real names when creating a profile, making it difficult to associate an individual with their online identity. In these instances, it is helpful to have other information, such as routinely used e-mail addresses or telephone numbers, in order to confirm the identify of an individual. Counsel should be cognizant of all online information relating to their clients.

4) Challenge: Accessing Social Networking Profiles
Discoverability of online profiles is likely not automatic. The relevance of the information or documentation is often an issue. Showing relevance is often difficult when profiles are “private” or the information contained within them is made available only to “friends” or “contacts.”

Subterfuge Friending
Professionals should remember that taking steps to gain access to a social networking account through the friending²¹of individuals for the sole purpose to obtain information that would otherwise not be available is considered “pretexting”. This may limit the usefulness of the information or, more seriously, its admissibility in court. In the US, the Philadelphia Bar Association issued a March 2009 opinion to members ruling that “subterfuge friending” violates the Association’s ethics standards. Subterfuge friending was deemed deceptive, as it induced a witness to provide access that he or she may otherwise not have provided had the true purpose of the access request been known.²²

Publicly Accessible Information
Discoverable information may also be publicly available if a user does not adjust their privacy settings or has a considerable online presence. Our experience with corporate intelligence searches often shows that there are wide-ranging global public information sources that are helpful in uncovering potentially sensitive information such as comments made on online forums, groups and message boards.²³ In many cases, even if an individual has attempted to remove something from the public domain, records remain in search engines, mirrors, archives, or other websites, which may support a future discovery request for the original source of that information.

Discovery Request
When considering ESI, counsel often ask their clients whether relevant matters related to the litigation were ever communicated through personal e-mail accounts. Consideration should now be given to queries about online messaging systems and social networking sites. The extension of litigation hold notices to social networking pages is another potential issue for consideration by corporations.

Conclusion

Considering social media as a component of ESI is becoming more common. The popularity of social networks has created opportunities to find and use information to advance or defend a claim.

Organizations should ensure that their internal policies are proactive and recognize the existence of social networks. Companies need to understand both the benefits of such sites (marketing reach and communication) and the potential risks attached to these new information forums. Policies and procedures on the use of social networking sites can lay a foundation for appropriate use and can help to mitigate the inherent risks.

For counsel, knowing the information about your client or a client’s employees that is available on social media channels can often be the best way to pre-empt opposing counsel and ensure you are prepared for the otherwise unexpected.

Social Media: Selected Rulings from Canadian Courts

CASE  Cikojevic v. Timm YEAR  2007    COURT  British Columbia Supreme Court TYPE  Civil litigation – Torts SIGNIFICANCE OF RULING Photographs sourced from Facebook were entered into evidence to support the claim that the plaintiff’s quality of life had not deteriorated to the extent that she purported in her application for advance payment of damages due to hardship.	CASE   C.M.R. v. O.D.R YEAR  2008  COURT New Brunswick Court of Queen’s Bench   TYPE Family law – Custody and access SIGNIFICANCE OF RULING Facebook entries were entered into evidence to show activities a defendant enjoyed and claims he made in order to support claims that he had the means to pay child support in arrears.	CASE   R. v. M.C.S. YEAR  2010 COURT  Nova Scotia Provincial Court TYPE Criminal law – Attempted murder charge SIGNIFICANCE OF RULING Justice Campbell considered photographs and captions as inferences in circumstantial evidence against an accused.
CASE  Murphy v. Perger YEAR  2007   COURT Ontario Superior Court of Justice  TYPE Civil litigation – Torts SIGNIFICANCE OF RULING Justice Rady found that ordering production of photographs from a private Facebook page was not an invasion of privacy given the number of people who had access to the private site.	CASE   Schuster v. Royal & Sun Alliance Insurance Company of Canada YEAR  2009  COURT Ontario Superior Court of Justice  TYPE  Civil litigation – Insurance related SIGNIFICANCE OF RULING Justice Price ruled the plaintiff was not required to produce her Facebook page or documents contained therein, as the defendant did not establish that the information was relevant, required preservation, or that there was a legal entitlement
CASE   Wice v. Dominion of Canada General Insurance Co. YEAR  2009  COURT Ontario Superior Court of Justice TYPE Civil litigation – Insurance related SIGNIFICANCE OF RULING Justice Boswell ruled the plaintiff must provide relevant information contained in his Facebook profile or similar account, and that the plaintiff was to preserve any and all information in the account(s).	CASE   Leduc v. Roman YEAR  2009  COURT Ontario Superior Court of Justice TYPE Civil litigation – Insurance related SIGNIFICANCE OF RULING Justice Brown held when it can be shown that documents contained within a Facebook profile is relevant to the issue, it must be produced.

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Anna Maria Cicirello is a Senior Manager within KPMG’s Forensic practice in Toronto. She holds a Bachelor of Commerce degree, is a Chartered Accountant, and a Certified Public Accountant in the United States of America. With over 10 years of experience in public accounting, she has assisted in investigations around the globe.

Contact: Anna Maria Cicirello, Senior Manager, KPMG Forensic. acicirello@kpmg.ca 
416-777-8471

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(Footnote)

¹ Changes to the Ontario Rules of Civil Procedures in January 2010 have continued the evolution of disclosure requirements of ESI.

² www.facebook.com/advertising/

³ http://economictimes.indiatimes.com/articleshow/5808927.cms?prtpage=1

⁴ http://press.linkedin.com/about

⁵ http://economictimes.indiatimes.com/articleshow/5808927.cms?prtpage=1

⁶ http://www.youtube.com/t/fact_sheet

⁷ “Social Network Site Privacy: A comparative analysis of six sites”, The Office of the Privacy Commissioner of Canada, February 2009

⁸ The Canadian Wireless Telecommunications Association (CWTA) is the authority on wireless issues, developments and trends in Canada. See: http://www.cwta.ca/CWTASite/english/index.html

⁹ “Research Report: Focus Testing Privacy Issues and Potential Risks of Social Networking Sites”, Decima Research for The Office of the Privacy Commissioner of Canada, March 20, 2009.

¹⁰ Report: “Designing Social Media Policy for Government: Eight Essential Elements”, Center for Technology in Government, The Research Foundation of State University of New York, 2010.

¹¹ Leduc v. Roman, 2009 CarswellOnt 843 (Ont.S.C.), per Brown, J.

¹² Online dating websites are also useful sites in divorce proceedings as users are required to post personal information.

¹³ See: Cikojevic v. Timm, 2008 BCSC74, R.(C.M.) v. R. (O.D.), 2008 NBQB 253, Kourtesis v. Joris, [2007]

¹⁴ R. v. M.C.S., 2010 NSPC 26

¹⁵ A tweet is a post or status update posted on Twitter, a micro blogging service.

¹⁶ Murphy v. Perger [2007] O.M. No. 5511, 2007 WL 5354848 (Ont. S.C.J.)

¹⁷ The revisions to the Ontario Rules of Civil Procedure in January 2010 also add the concept of proportionality to disclosure requirements and this will be an important and developing issue.

¹⁸ As an example, Facebook, in their privacy policy acknowledged by their users, states that they “may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law. This may include respecting requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law under the local laws in that jurisdiction, apply to users from that jurisdiction, and are consistent with generally accepted international standards information.” See Facebook Privacy Policy: http://www.facebook.com/policy.php.

¹⁹ http://www.archive.org/about/faqs.php#The_Wayback_Machine.

²⁰ A petabyte is equivalent to 1,024 terabytes of data. By some calculations, one petabyte has between 20 to 50 billion pages of data.

²¹ Friending refers to the action of adding a user as a person with access to one’s social networking sites or social commmunity sites, etc.

²² Philadelphia Bar Association opinion 2009-02, March 2009.

²³ KPMG Corporate Intelligence collects and analyzes information from a variety of public and other sources for the purposes of providing its clients with information they need to make decisions.  Our goal is to build a reputational profile of individuals and companies being reviewed and provide our clients with the information necessary to make informed business decisions, whether related to employment, business partnership or investment opportunity.