Sept. 7, 2016 – The use of social media has exploded in the last 10 years, changing the landscape of civil litigation. In today’s age of chat groups, Twitter, and Facebook, social media can be a treasure trove of relevant information for the defense. Given the wealth of potential information, discovery of social media may also be more beneficial and less costly than traditional surveillance.
The majority of attorneys may not be using social media to their benefit. In addition, attorneys and claims professionals must consider social media at the outset of a claim or lawsuit or risk losing the information forever. The key is to find it, obtain it, preserve it, and use it to your advantage.
Collecting and preserving social media, however, poses significant challenges and evidentiary issues that are not always understood or clearly defined by the courts. While social media has changed the way we live, connect, and communicate, the laws and guidance from the courts has been slow to develop.
For instance, when social media first burst on the scene, circuit court judges would frequently order the entirety of a person’s social media account to be produced. Because of a lack of understanding of what social media was, the information contained on it, and the scope and breadth of its use, courts would simply order production of everything.
That sort of blanket order is now the exception rather than the rule. As judges themselves have begun using social media, there is a greater understanding of what it is and how it is used. Most courts now view social media content as being no different than other evidence, requiring it to be relevant, authenticated, and admissible at trial.
Understanding the Format and Devices
Given the technological world we live in, it is important to understand the social media formats and the types of information maintained on those types of accounts. Some of the more recognized social media formats include Facebook, YouTube, Twitter, Instagram, Flickr, Vine, Snapchat, and Tumblr.
Ann S. Jacobs is the founder of Jacobs Injury Law S.C., Milwaukee. Her practice includes automobile accidents, nursing home abuse and neglect cases, financial abuse and fraud, as well as medical malpractice cases. Reach her by email or by phone at (414) 306-8999.
Amy J. Doyle is a shareholder with Crivello Carlson S.C., Milwaukee. Her primary practice areas include municipal and civil rights litigation including jail and prisoner liability, law enforcement liability, land use issues, municipal defense and appellate practice. Reach her by email or by phone at (414) 271-7722.
What is trending today may be different six months or a year from now. It also is important to recognize the ever-changing devices that collect and maintain information. Data collected with an exercise bracelet, such as a Fitbit, may prove to be highly relevant to both plaintiffs and defendants in a case claiming a severe disability.
It is also important to be aware of the pitfalls of too much confidence in social media. Careful evaluation of the information is still required.
For example, while a Fitbit or similar device can show the number of steps a person took, some devices show movement simply through repeated hand movements such as crocheting. Understanding the devices and what their data actually shows is important.
In order to take advantage of social media, it is important to identify a claimant’s social media accounts as early as possible. When a potential suit becomes known, it is advisable to complete a social media search of the claimant, friends of the claimant, and other potential witnesses.
Google is your friend. Do not be afraid to do a pre-suit Google search for a claimant’s social media accounts. Many account settings are “public,” which will allow anyone to view their content. A search should also be done of the claimant’s social media “friends.” Often times, a “friend” will comment, message or post a photo or video about the claimant, which may be relevant to the case.
A “friend” can also provide information as to his or her bias or the identity of other potential witnesses. Even if the account settings are not public, one can at least learn of the existence of the accounts. This information can be useful during the discovery process. Downloading or saving a screen capture of the social media accounts and the details of the account may become important later when dealing with spoliation claims.
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Attorneys should ask for social media content if they have reason to believe it contains information relevant to the case, says Ann Jacobs, a personal injury lawyer with Jacobs Injury Law S.C. in Milwaukee. What lawyers can (and can't) access during the discovery phase.
Begin any discovery of social media with an inquiry about what accounts the individual maintains. Once identified, if the privacy settings on the social media accounts are on private, a party will have to use formal discovery to obtain access to the information. A person’s social media account is not off limits simply because the information is contained under a private setting.
Courts, however, have struggled to determine what information should be produced when social media requests are made. Courts generally have taken a restricted view with respect to social media discovery and are wary of fishing expeditions taken under the guise of discovery requests.
There is a growing recognition that because social media accounts include information that would never (or very unlikely) be discoverable – such as religious orientation, political views, family matters, and so on – caution must be taken in demanding its release.
Social media is not discoverable simply because such accounts exist. Rather, the information must be relevant and material to the issues in the case. If a party can show relevance or that there is reason to believe certain information may lead to the discovery of relevant evidence, a judge is more likely to approve a request to obtain private social media postings, photographs, or videos.
In order to avoid fishing expedition objections, prepare to show relevance of the discovery request in light of the facts and issues of the case. Courts have routinely denied discovery requests for being overbroad in that they request all information contained in the social media account.
For the very connected person, who perhaps posts 10-20 times per day on social media, a discovery request for, say, five years of past postings would mean literally tens of thousands of posts. Such broad requests, without more specificity, are usually denied.
A social media request should be specific, narrowly tailored with date parameters, and be relevant to the injuries, claims, and issues in the case. For example, photographs taken several years prior to the accident or those that do not even include the plaintiff may not be relevant to the case.
Establish relevance of information through public postings or photographs that contradict or call into question a claim or injury being alleged. Similarly, a request for postings occurring on or around the date of the incident (looking for postings relating to liability) will likely be seen as narrowly tailored.
After all, if the parties were on their devices posting content when they should have been driving, or posting their reaction to the event at issue, that would be very relevant to the claim.
At the onset of the case, consider sending a preservation letter to a claimant’s counsel or defendant’s insurance company requesting preservation of social media accounts and their content to ensure the information is not deleted before a formal discovery is commenced. Warn clients and insureds not to delete photos or postings relating to the accident/claim.
Requests to Parties
Generally, direct discovery requests to the party, not to the social media network. Under the Stored Communications Act, 18 U.S.C. §§ 2701-2712, social media sites cannot disclose non-public content without a user’s consent.
Therefore, requesting a social media site to produce social media content, even with a valid subpoena or court order, has been largely unsuccessful. As such, attempts to obtain social media information should first be initiated through traditional discovery requests directed to the opposing party.
If the attorney is seeking information that may have been deleted or made unavailable (think ‘disappeared’ Snap-Chat videos), consider consulting an expert as to whether the information can be recovered and how.
Since social media is viewed the same as documents, photographs, or other traditional evidence, attorneys should consider how it will be authenticated.
Courts have routinely precluded evidence found online without any attempt to authenticate how or where the information was obtained. It is important to document procedures taken and information or accounts identified with dates, times, and information downloaded. It may be too late to wait until the time of trial to determine how to authenticate information found online several years earlier.
The most practical way to authenticate information is from the testimony of the witness who has knowledge of the social media account. Authentication also can be established by stipulation of the parties. At a minimum, obtain an affidavit of the individual in your office who initially viewed the account and how the information was preserved.
Information as to the number of accounts identified and the details of those accounts, including the number of photographs or posts on any given date, may also be significant to a claim of spoliation. The fact that it is social media does not change the need for authentication and proper investigation.
Various ethical considerations come into play when considering discovery of social media. A party has a duty to preserve information that is relevant to litigation. A party or even their attorney can be sanctioned for destruction of social media accounts or information. Increasing privacy settings is not spoliation. It is simply prudent behavior. On the other hand, deleting accident-related photos (without creating backups or otherwise preserving them) can be spoliation.
In addition, do not engage in prohibited communications in order to gain access to an otherwise private or secure social media account. “Friending” or otherwise making contact with a represented party is generally prohibited under rules of professional conduct. It also has been found unethical for an attorney to use a third party, such as an assistant, to friend a plaintiff.
Not only can it be prohibited contact, it can be seen as dishonest and, therefore, a violation of attorney ethics. This also precludes friending a friend of the target in order to see the target’s postings. Even before a party has legal representation, care must be taken in contacting or friending a claimant.
However, an attorney may investigate a social media account as long as the profile is publically available. To obtain information or evidence on private social media profiles, use the formal discovery process.
Social media has a treasure trove of relevant information for both plaintiffs and defendants. However, it is no different than any other discovery. Requests must be for relevant, discoverable information. Well-formed, concise requests will get the information sought and will be most likely approved by the courts.