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14 SMU Sci. & Tech. L. Rev. 465 (2010-2011)
Digging for the Digital Dirt: Discovery and Use of Evidence from Social Media Sites

handle is hein.journals/comlrtj14 and id is 471 raw text is: Digging for the Digital Dirt:
Discovery and Use of Evidence from
Social Media Sites
John G. Browning*
The Internet has opened new channels of communication and self-ex-
pression .... Countless individuals use message boards, date matching sites,
interactive social networks, blog hosting services, and video sharing websites
to make themselves and their ideas visible to the world. While such in-
termediaries enable the user-driven digital age, they also create new legal
-Fair Housing Council of San Fernando Valley v. Roommates.com,
LLC 489 F.3d 921, 924 (9th Cir. 2007).
Imagine encountering the following scenario during the litigation fol-
lowing an industrial accident: just as an expert witness is explaining how all
required safety protocols and procedures were diligently followed, opposing
counsel confronts him with postings from YouTube videos shot by some of
the defendant company's own employees showing how they cut corners. Or
perhaps the defendant driver in a devastating accident denies that he was in a
hurry and not paying attention, only to be confronted with his own tweets
about being behind schedule. For plaintiff's counsel, consider the sinking
feeling when your client, a grieving widow who has just finished testifying
about the void left by the loss of her husband, is impeached with salacious
photos and postings from her boyfriend's MySpace page-all of which are
dated months before the accident in which her husband was killed. And of
course, there is nothing quite like the look on the face of a severely and
permanently injured plaintiff who has spun his tale of woe for the jury about
barely being able to walk and who now has to explain the photos from his
Facebook page depicting his completion of a recent 10k run or a mountain
climb in the Pacific Northwest.
Scenarios like these are occurring with increasing frequency in civil liti-
gation-thanks not only to the explosive growth in and sheer pervasiveness
of social media, but also to the legal profession's eagerness to exploit the
treasure trove of information to be mined from social networking sites.
Roughly half of Internet users in the United States have a profile on a social
John G. Browning is the managing partner of the Dallas office of Lewis Bris-
bois Bisgaard & Smith LLP, where he handles a wide variety of civil litigation,
including cyberliability and technology-related legal issues. He received his
B.A. with general and departmental honors from Rutgers University in 1986
and his J.D. from the University of Texas School of Law in 1989. He is the
author of The Lawyer's Guide to Social Networking: Understanding Social Me-
dia's Impact on the Law (West 2010).

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