Lauren M. Sobel, Thomson Reuters Practical Law, Legaltech News
Social media has created a wealth of valuable information—and a host of new considerations—for litigators.
Social media has given people the opportunity to share
all kinds of information with the public, and many use it to detail every
aspect of their daily lives. As a result, litigators have access to a treasure
trove of information that can be used when preparing or litigating a case.
Although litigators commonly deal with emails and text messages, they may be
less familiar with how to handle access to, or content derived from, social
media sites. Developing an understanding of how to use this increasingly
important tool in an attorney’s arsenal is crucial.
Below are some tips for
litigators to remember when dealing with social media content.
1. Social media posts must be preserved. As with any other type of evidence, when litigation is
anticipated or ongoing, there is a duty to preserve social media content.
Destroying or altering information on a social media account can lead to claims
of spoliation and hefty sanctions.
For example, in Congregation
Rabbinical College of Tartikov, Inc. v. Village of Pomona, the Southern District of New York imposed sanctions,
which included an adverse inference instruction at trial and attorneys’ fees
and costs, against defendants who deleted Facebook posts and related text
messages that they should have preserved during ongoing litigation. In another
case stemming from the death of a plaintiff’s wife (Allied
Concrete Co. v. Lester), a
Virginia trial court sanctioned both the plaintiff and his attorney after the
plaintiff, in response to his attorney’s advice to sanitize his Facebook page,
deleted his Facebook page and photographs that may have undermined his claim
for damages for his wife’s death, including one with the plaintiff holding a
beer while wearing a t-shirt that read “I <3 hot moms.” In addition to
issuing an adverse inference instruction, the trial court ordered fines of
$542,000 for the attorney and $180,000 for the plaintiff.
2. Ethical rules apply to social media communication. Although social media may seem like a free-for-all,
ethical rules still apply to attorneys searching for social media information.
Ethical rules often do allow attorneys to use social media platforms to contact
an unrepresented witness or party, but only if the attorney does not engage in
deceptive behavior in the process. For example, an attorney generally cannot
create a Facebook profile with a pseudonym or inaccurate information for the
purpose of “friending” an unrepresented witness or party to gain access to
their non-public posts, photographs, and the like.
3. Know the difference between public and non-public
information. When investigating a case, public information on
social media—which can be viewed by anyone without the permission of the
account holder—is fair game. Generally, however, an attorney may not attempt to
access non-public information for use in litigation by “friending” a
represented person or “following” their social media account, as that violates
the prohibition against communicating with represented parties.
With respect to privacy
settings, attorneys may advise their clients to change them on their personal
social media accounts to make public information non-public, as long as
evidence is not deleted or destroyed (and attorneys should consider backing up
clients’ social media information to protect against spoliation claims when
privacy settings are changed). However, even after information has been made
non-public, parties must comply with non-objectionable discovery requests and
supply relevant non-public social media content where requested.
4. Some jurisdictions allow service of process through
social media. Courts have increasingly allowed service of process on
a difficult-to-find defendant through social media where the plaintiff can
demonstrate the authenticity of associated email accounts and that the defendant
recently accessed the social media account. For example, in Ferrarese v.
Shaw, a recent case
involving an international custody dispute, the court allowed the petitioner to
attempt service through the defendant’s Facebook and Instagram accounts after
diligent but unsuccessful attempts to locate the defendant, who also appeared
to frequently change names.
5. Social media is not a license to fish. Parties must carefully craft discovery requests for
social media content, as courts do not like fishing expeditions, even in the
context of social media. Attorneys should be prepared to demonstrate that the
content they want is relevant and proportional to the needs of the case.
6. Don’t forget the jury. Social media can supply a wealth of information about
potential jurors. For example, social media content can reveal potential
jurors’ educational and professional backgrounds, the types of organizations
they follow, and their political affiliations. However, attorneys must tread
lightly when looking for this information. Although public information is
typically fair game when researching potential jurors, attorneys are almost
always prohibited from following or connecting with potential jurors through
social media.
Attorneys should also
keep in mind that once trial begins, a juror who improperly uses social media
can cause disastrous consequences. Juror social media use increasingly has
become a basis for post-trial motions and appeals. To prevent these types of
issues, attorneys should regularly check public social media content (unless
prohibited by the court) and report any misconduct to the court, such as posts
that suggest bias or consideration of information not presented during a case.
Attorneys should also consider asking the court to instruct the jury to avoid
social media both before and during the trial and the consequences for not
doing so. Asking the court to require jurors to take an oath to refrain from
social media use during trial may be another possibility.
Lauren M. Sobel joined Practical Law from Shutts &
Bowen, where she was a partner in the firm's business litigation department.
No comments:
Post a Comment