Electronic Discovery – Can Contents of My Electronic Communications Be Used As Evidence in Court?

Text Messages, Instant Messages, and Chats
Text messages, Instant Messages (IM), and Chats are all ESI and are treated like e-mails for the purposes of discovery. Therefore they are discoverable. Many users of text and instant message believe that because their messages are executed on a mobile phone, their communications are deleted once sent. However, most service providers keep a record of texts and IM’s for anywhere from one to three months after they are sent. Also, after the Zubulake case, companies are much more wary of clearing messages from their database, especially if the message is “potentially discoverable” in a pending case.

Text messages and the like can also present problems oneplus 4k tv 43 inch with timeliness, as they tend to be deleted from the database even more quickly than e-mails. Also, most texts do not have a title as do e-mails, so they can be cumbersome to sift through for the relevant information. They are still, however, discoverable.

Social Networking Websites
Information posted on sites such as MySpace or Facebook is definitely considered to be ESI and subject to discovery. This means that anything posted by a profile owner that is incriminating could be used against them in court as electronic evidence.

Attorneys now regularly search such networking sites such as MySpace and Facebook to gather information that might be relevant to their cases. This might involve identifying witnesses, or collecting statements that might add testimonial weight to their case. Also, photographs posted online can be used in various ways to establish a case. Therefore profile owners should be wary of posting any information that might be used against them in court.

To date there have been no major corporate legal cases that relied heavily on the production of discovery information from social networks such as Facebook or Twitter. A recent Canadian case, Leduc v. Roman 2009 CanLII 6838 (ON S.C.), held that information posted on websites such as Facebook must be disclosed upon request even if the person has blocked public access to their profile. It probably won’t be long before we see some major American cases dealing with the production of evidence from social network sites.

Most legal cases involving social networks and privacy have been the other way around: the website intruded on people’s privacy with invasive advertisement. Perhaps the reluctance to involve such information in litigation is that these websites are very new to the scene. Also, most companies agree that e-discovery in a social network setting can be a potential nightmare. As with texts, there are usually no titles in much of the information posted, not to mention the various applications and different features of such sites. Finally, most attorneys would prefer to rely on traditional forms of evidence such as witness testimony, before relying on information from networking sites.

More recently, the Philadelphia State Bar Association has published an opinion regarding attorneys’ use of third parties to obtain information from social networks. The opinion stated that an attorney should not use a third party in order to gain access to a person’s profile, for example, by asking someone else to make a friend request in order to remain anonymous. Although information on social network sites is discoverable, attorneys and state officials must still abide by rules of ethics and professional conduct.

A Final Note: Creative Lawyering and E-Discovery
Finally, remember that it is not always the content of electronically stored information that can be incriminating. ESI can be used in many creative ways. The information might be used to prove a required element of a crime, such as the person’s mental state, or a person’s location in a particular place. For example, if a suspect’s alibi might be questioned if a computer log shows that they were actively online at a different place. Creative lawyering means that a lawyer will use any information to prove their case, and they might do so in ways not commonly imagined.

So, it is to your benefit that you be aware of the possibility of electronic information being used as evidence. Obviously, posting incriminating evidence is unwise, but bear in mind that information can be used in a variety of ways. Even seemingly harmless conversations can be used to prove guilt in a court of law. And statements that other people post on a user’s profile are also fair game. It is nearly impossible not to be involved with ESI in some way or another, but a little common sense can go a long way.