Social media continues to play an important role in trials as precedent-allowing social history as direct and indirect evidence grows. This not only includes public accounts, but also those whose owners had locked as private. A desire to protect these private accounts has led to sanctions against clients for the destruction of or failing to preserve evidence. Attorneys have also faced sanctions for telling clients to wipe accounts or for not instructing them to preserve their accounts. To avoid issues, attorneys must be aware of potential privacy concerns as well as the correct way to approach them.
Social Media Uses in Law
To most people, social media is a communication tool that’s sometimes public and sometimes private. Everyone is constantly reminded about updating their privacy settings to keep embarrassing posts from ending up in front of employers or otherwise going public. Posts marked private are therefore seen as private.
To a trial attorney, a social media account becomes an additional source of potential discovery material. Judges largely agree.
For centuries, it’s been a general principle in the law that information shared with others isn’t private because the other person could decide to share it at any time. In the social media context, some concerns have been raised about fishing expeditions, but courts generally allow at least some scope of discovery as long as the requesting party explains why it expects to find relevant information.
Privacy Concerns with Social Media
While social media use expands in trials, social media companies are under increasing fire about how they protect users’ privacy. Facebook recently faced a $5 billion penalty and requirement to overhaul its privacy practices over allegations that its privacy promises were misleading. The publicity of these developments may give clients unreasonable expectations of their privacy in a litigation context, and attorneys need to be prepared to address three key areas:
Discovery
Clients need to understand that their social media privacy settings do not apply to discovery. When a discovery request is made, they need to be prepared to turn over their social media content unless there is a legal reason that exempts them from complying.
Attorneys should also caution clients against deleting or altering their profiles. These changes can be tracked, and doing so could result in sanctions or negative inferences made against them during the trial. Attorneys should also be aware of their role and the surrounding ethical obligations regarding preserving evidence.
Authentication
As with other evidence, social media content must be authenticated to show it is an unaltered representation of what the client originally posted. This can often be stipulated rather than using a custodian of records from the social media company or a forensic expert. However, opposing counsel may want to have some level of assurance — for example, you may have your client log in and download their social media history at a deposition.
Attorney Interactions with Others
Attorney interactions on social media are generally governed the same way as any other contact. For example, if you can’t talk to the opposing party in person with no attorney present, you can’t message them on social media. This can also include “friending” or following to try to gain access to a profile. Attorneys should never use trickery or operate covertly to try to gain access to a social media profile. They should obtain access during discovery or, if necessary, work with a private investigator or other expert.
Using ClaimScout to Obtain Social Media Content
ClaimScout can help discover and monitor social media accounts for plaintiffs, defendants, witnesses, and others. The technology uses a proprietary methodology to search the web for accounts that a person may not have told you about. It also checks whether what they’ve posted on their accounts matches what they’ve told you.
If you’re picking a jury, JuryScout can search for juror social media accounts to verify what they’ve told you, monitor if they’re following the judge’s instructions during trial, and predict their biases.
Clients may not like their social media profiles being dragged into court, but attorneys need to prepare them for that to happen. Social media surveillance is one of the ways to prepare and avoid surprises. Proper preparation and the use of the right tools can help attorneys to protect their clients and use social media information to their advantage.
If you need a deposition space to go over social media accounts with your client or opposing counsel, book a room now.