March 15, 2017
Social media allows people to share all kinds of information with the public, and many use it to detail every aspect of their daily lives. As a result, social media may give litigators access to a treasure trove of information that, if collected properly, can be extremely useful.
Attorneys should remember the following tips and ethical guidelines for handling social media content in litigation:
- 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 relevant social media content. Destroying or altering relevant information on a social media account can lead to claims of spoliation and sanctions.
- Ethical rules apply to social media communication. Although the content and proliferation of social media may suggest a free-for-all, ethical rules apply to attorneys using social media to gather information. Ethical rules may allow an attorney 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 cannot ethically create a fake Facebook profile with inaccurate information for the purpose of “friending” an unrepresented witness or party to gain access to their non-public posts, photographs, and the like. Many jurisdictions have published ethical guidance on these and other social media issues. Attorneys should become familiar with guidance in their jurisdiction before using social media for a case.
- Know the difference between public and non-public information. When investigating a case, publicly-accessible information on social media is typically 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.
- Mind your client’s privacy settings. Attorneys may advise their clients to change privacy settings on 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 before formal collection to protect against spoliation claims when clients change privacy settings). However, even after information has been made non-public, parties must comply with non-objectionable discovery requests that seek relevant, non-public social media content.
- Some jurisdictions allow service of process through social media. Some courts have allowed service of process on a difficult-to-find defendant through social media where the plaintiff can demonstrate diligent attempts at traditional methods of service, the authenticity of email accounts associated with the defendant’s social media account, and that the defendant recently accessed the social media account. Attorneys should carefully document service attempts and gather evidence showing links between a party’s social media accounts and their email addresses and other contact information.
- Social media is not a license to fish. Counsel must carefully craft discovery requests for social media content, as courts do not like fishing expeditions. Attorneys should be prepared to demonstrate that the content they want is relevant to the parties’ claims and defenses and proportional to the needs of the case.
- Tread carefully when researching jurors. Social media content can reveal potential jurors’ educational and professional backgrounds, the types of organizations they follow, and their political affiliations, among other things. However, attorneys must exercise extra caution when researching jurors. 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. Some courts may also require parties to first request the court’s permission before conducting online juror research.
To learn more about social media in litigation, and for more insight on the tips in this post, Practical Law offers attorneys access to resources such as the Practice Note, Social Media: What Every Litigator Needs to Know, and the on-demand webinar, Best Practices for Litigating in the Age of Social Media. To learn more about other litigation software and services from Thomson Reuters, click here.