When it comes to electronic discovery, many attorneys focus their attention on relevant documents stored on hard drives and e-mail exchanges.

But social networking Web sites such as Facebook and Twitter can also provide pertinent evidence, said attorney Bruce A. Olson, President of ONLAW Trial Technologies, LLC, a trial technology, e-discovery and computer forensics consulting company in Appleton.

Olson was one of four panelists who discussed electronic discovery strategies for small firms during a session at the ABA TechShow on March 26.

“I don’t think it’s been in the consciousness of attorneys. They’re only now beginning to realize they have to look for those things,” Olson said in an interview.

Olson suggested that social media sites might offer particularly valuable information in personal injury, family and employment disputes.

For example, if an attorney has a client who contacts the firm after an auto accident to file an injury claim, the lawyer should make sure there aren’t any pictures or postings online which might contradict the claim.

“Anyone not paying attention to this is making a mistake,” said personal injury attorney Jeffrey R. Zirgibel.

The Brookfield attorney represented the family of an individual who crashed and died after drinking at a house party. Several witnesses posted about the incident on their Facebook pages and Zirgibel was able to use the information in the case.

“All these kids had these pages,” he said. “That’s all relevant and admissible in court.”

The same is true for a contested divorce, where one spouse may have incriminating evidence on his or her social media site.

“Advise clients [that] if they do have a divorce coming up to turn off their Facebook,” said U.S. District Court Judge James Rosenbaum. “That’s not spoliation. That is just using your head.”

E-evidence never dies

But once the information is posted, Rosenbaum cautioned that attorneys can’t simply direct clients to delete it.

That could lead to court-imposed sanctions for destruction of evidence, he said.

And even if a client does take down a posting or photo, computer forensics technologist John Simek said that doesn’t mean it cannot be retrieved.

Unless hard drives are wiped clean, they store deleted information, and Simek noted that with social media sites there are often multiple sources which store the data.

“If you are using Twitter, followers might have your tweets on their computers,” he said. “It’s not necessarily just on a user’s computer.”

In addition, said Simek, who is president of Sensei Enterprises, Inc., in Fairfax, Va, Facebook and Twitter retain user pages.

But David Waxse, a U.S. Magistrate Judge in Kansas City, Kan., said that those companies are often reluctant to provide that information to attorneys.

“It may not be quite as simple as a subpoena to Facebook,” he said. “I was told that they regularly resist those subpoenas in an effort to try and protect the privacy of users.”

Internet service providers, which also temporarily store user information, are equally stingy with their access, said Simek.

“My experience with ISPs is they will not give you information unless you have authorization from the account holder,” he said. “Otherwise, you have to go to court.”

To limit the need for litigation to recover online social networking pages, Olson said attorneys should decide at the outset of a case whether information on those sites needs to be preserved.

The first thing he recommends is adding social networking sites to the firm’s intake forms so the issue is discussed at the meet and confer session.

Then tell the client to stop posting and not to alter the pages in any way.

“It’s easier to explain away a bad picture on the beach than it is to explain why you took it down and destroyed it,” Olson explained.

If both sides agree there might be relevant information on various online social networking pages, then it’s a matter of determining which ones to preserve, rather than saving the entire hard drive.

Waxse said one legitimate way to preserve a specific page is through a screenshot which captures the data from a specific day.

Web page preservation can be done for around $200, said Simek, provided the attorney has access.

“There are tools to do it efficiently and that way you have a particular day preserved for potential litigation,” he said.