Dec. 4, 2019 – What social media outlets do you use? What about your clients?

More than seven out of 10 U.S. individuals – 70 percent – use social media platforms to stay connected, engaged, entertained, and share information according to the Pew Research Center.¹ This percentage increased by 65 percent since 2005. Globally, East Asia, and North America lead with the highest usage, followed by northern Europe.²

YouTube and Facebook are the most widely-used social media platforms, followed by Twitter, Instagram, and LinkedIn. Tools more commonly adopted by younger age groups include Snapchat, WhatsApp, TikTok, and Pinterest.

While there are few differences between racial background and social media use, age, gender, community, and educational background factor into its use. Young adults were early adopters of social media, yet usage by older adults has steadily increased the past decade.

Social media is not just for socializing. It is a robust tool for legal practitioners to conduct research and investigate facts. This article explores using social media for research, to stay abreast of legal developments, common use cases, search tips, as well as important ethical considerations.

Don Your Detective Cap

Social media posts are packed with information nuggets that can be used in support of a client or against an opponent. Scouring social media content is increasingly a key component of research due diligence. A common use of social media content is for research in conjunction with trial practice.

Social media tools can be used to profile litigants, opposing counsel, as well as prospective jury pool members during voir dire, plus impeach a witness, gather facts, and gauge public opinion.

Social media posts could be used, for example, to uncover hidden assets in bankruptcy cases, assess a person's character, or challenge claims of injuries, pain, and suffering in personal injury matters, to name just a few use cases.

A company's social media footprint could be used to identify corporate history or uncover trademark abuses, and to identify false advertising, brand misappropriation, or counterfeiting. Social media posts can be used to identify and track down difficult-to-locate parties for service of process or witnesses. In short, the research application possibilities for social media content are extensive.

Sleuthing Sources and Strategies

General internet search engine queries often yield information embedded within social media posts, yet it is advisable to create one's own social media accounts for greater access and enhanced browsing and searching capabilities. Following the trail of a user's social media presence can be like a treasure hunt: clues in one site or post may yield additional sources and research paths.

When searching, allow for name variations, inclusion or exclusion of middle names and initials, plus variant spellings. Increasingly, users exclude surnames or craft creative aliases in their social media identities to enhance privacy, which may impact whether you are able to identify the correct individual's social media footprint.

Free people search engine tools such as PeekYou crawl public records and social media sites, index people, and link to social media profiles including Facebook, Twitter, Instagram, Pinterest, and more. Sites such as PeekYou save time by aggregating records from multiple sources.

Commercial public records research services, such as Westlaw's PeopleMap, TransUnion's TLO, and LexisNexis' Public Records with SmartLinx, feature social media and web analytics tools to aid in pinpointing social media accounts.  As with many public records, research tools there can be false hits, particularly in circumstances involving common names. Nonetheless, these aggregated people search tools save time by searching multiple sources in one fell swoop.

Footprints

Be advised that an individual's or organization's privacy settings will impact the content you can view on social media sites.

Also, be mindful of the footprints you may leave with social media research. Your own privacy settings should be taken into account when using social media for research. For example, your LinkedIn setting should be set at browsing in private mode, so that LinkedIn members cannot see if you have viewed their profile.

Some social media users periodically cleanse their posts or tighten their privacy settings to control access. Spoliation rules apply to social media, thus clients should not be encouraged to wipe clean social media posts. If you are looking to gather evidence, do so early, and appropriately document profiles and posts with screen captures and research notes.

Authenticating and Using as Evidence

Use of social media content as evidence is now commonplace. The Federal Rules of Evidence apply to social media content, just like all other evidence, and attempts should be made to fully authenticate social media-generated content. Document how the evidence was identified and copied, capture screen shots, and print with header and footer information to demonstrate the site URL, and date and time visited.

Do not simply copy website addresses, as content could change or be deleted the next time you try to access a site. State Bar of Wisconsin PINNACLE’s Wisconsin Guide to Citation provides guidelines for citing blog posts, social media posts, and podcasts.³

Ethical Considerations

Multiple ethical requirements and obligations must be taken into consideration when using social media content in law practice.

The American Bar Association (ABA) Model Rules of Professional Conduct Rule 1.1 on competence requires legal knowledge, skill, and thoroughness. In particular, comment [8] mandates a lawyer to keep abreast of changes in the law and its practice, as well as benefits and risks associated with relevant technology.⁴

Rule 4.2 on Communications with Person Represented by Counsel must be adhered, and applies to communications via social media networks.

A 2014 ABA Formal Ethics Opinion addresses a lawyer's review of a juror's or potential juror's internet presence, indicating a lawyer may passively review a juror's public internet presence, but may not communicate with a juror nor request access to a juror's electronic social media (ESM).⁵

Multiple state bar ethics opinions echo the guidance.⁶ A 2018 State Bar of Wisconsin “Ethical Dilemma” column iterates that a "friend" request is considered "communication" under SCR 20:4.2, and thus lawyers may not submit a friend request to a person who the lawyer knows to be represented in a matter in which the lawyer is representing the client.⁷

Do Your Due Diligence

In sum, any time you need to research an individual or corporate entity, consider social media sites as a ripe information source offering a potential treasure trove of information. The simple rules of the road are: do not friend, do not follow, and do not communicate.

Social media is also a viable source for professional current awareness and competitive intelligence gathering. Library and information professionals in academic, government, corporate, public, and private law firm settings can provide expert tips on the best sources and strategies for uncovering actionable intelligence buried within social media sites.

The author would like to thank Jennifer Dedolph, senior legal research specialist at Quarles & Brady, for insights on social media research tools in conjunction with this article.

Endnotes

¹ Pew Research Center, Social Media Fact Sheet, June 12, 2019.

² Statista, Social Media - Statistics & Facts, Sept. 4, 2019.

³ Wisconsin Guide to Citation § 39-41. (9th ed., 2018).

⁴ Model Rules of Prof'l Conduct, r. 1.1 cmt. 8.

⁵ ABA Comm'n on Ethics & Prof'l Responsibility, Formal Op. 466 (2014) (discussing attorney use of jurors' internet presence).

⁶ Peter Geraghty, Ethics Tip - February 2017, June 7, 2019.

⁷ "Ethical Dilemmas: When Can Your View Social Media Information on an Opposing Client?" State Bar of Wisconsin InsideTrack, Feb. 21, 2018.