A Valuable Tool in Litigation

Every day, an increasing amount of personal information is posted on the internet, often without our knowledge. It’s not breakthrough information that it houses a gold mine of information for lawyers to use. Utilizing the internet is a significant aspect of how lawyers conduct business, part of due diligence, and considered a form of legal malpractice if social media is not accessed during a case.

Billions and trillions of social media users spend nearly the same amount of time online per day. In litigation, internet access provides a treasure trove of information about potential jurors, witnesses, and even other lawyers. Privacy settings may limit access to online profiles; but public content, fan pages, and other platforms can provide valuable information regarding an individual’s interests, views, and values. Most online methods of self-promotion are useful to litigators in obtaining information.

Most people have a significant internet presence without having social networking pages. Online activity leaves a trail everywhere that can be followed and accessed. Information about parties in a lawsuit can be found in near-limitless places, such as blog postings, comments to posts, articles, and more. Social media is interwoven in our lives. Naturally, all media are social, and the immediacy and impulsivity of social media use expand daily. For better or worse, users publish vast amounts of personal information, clearly without much reflection.

Value of Social Media to Lawyers

The information harvested online is more effective than a written diary, email, or even video surveillance. Social media has become the fingerprint of a witness. Many statements are time-stamped, impulsive, present-sense impressions, which can be the impeachment evidence of your dreams. Fortunately for attorneys in litigation, social media content is discoverable through either formal or informal means. Rules of Civil Procedure condone it, and a considerable amount of public information is accessible, even if you are not part of the network or not a “friend.” Many sites are 100% public, but others allow access to private messages. Almost everything most lawyers need is freely accessible, outside of any formal discovery request.

Pre-litigation, you can run, but you cannot hide (very well). Information from social media is useful when trying to locate a witness or other parties who are trying to avoid being served. At one point, courts in New York State rejected service through social media, citing the risk that profiles can be faked. Authentication was considered to be a problem.

Searches through social media are now a huge part of every forensic and legal investigation. In the early stages of litigation, clients may be counseled against the spoliation (destruction) of evidence and warned not to “clean up” their social media accounts or delete them. The court may sanction a spoliation party by fining the individual or issuing a contempt citation. The worst may be issuing a contempt citation and allowing an “adverse inference” jury instruction. Destroying or concealing evidence can result in a significant fine and up to six months in jail.

In motions to compel social media evidence, success may depend on tying the request to facts in the case. For instance, in a wage and hour case, all posts made by an employee suing her employer for unpaid wages or overtime are relevant to determine whether she was spending her working hours on social media or performing actual work. Formal requests in these circumstances will likely be granted. When examining a witness on the stand, the use of social media is a common practice for direct and cross-examination. Quite often, parties or witnesses will have already admitted a fact on their social media pages that undermines the credibility of their claims or defenses in the lawsuit. Perfect impeachment of the witness.

Selecting Potential Jurors at Trial

Who hasn’t been called for jury duty? A potential juror’s willingness to share his or her thoughts and activities with the world on social media benefits attorneys when selecting a panel. The attorney can find out how the potential juror votes, spends their money, and expresses opinions on controversial issues. While some users restrict their profiles, about one-third of adults on social networks allow anyone to view their profiles.

Attorneys can discover a juror’s internet presence by utilizing various search engines, such as Google, or by using networking sites by entering a combination of name, residence, phone number, email, physical address, or occupation. A screen name can be linked to an individual with relatively little forensic effort. While judges routinely caution prospective juror panels about the importance of not discussing the case (including on social media), most people routinely disobey the court’s directions. This bad behavior increases the risk of mistrials and undermines public confidence in jury trials.

Examples of Juror Misconduct Through Social Media

A 20-year-old juror and social media enthusiast decided to “tweet” in the midst of a high-stakes trial. Although she did not specifically discuss the case itself, she did post about her “experience,” including the poor air conditioning and terrible food. Her posts about the trial were picked up by the news media, which were interested in the case. This came to the attention of the court. The defense moved for a mistrial, and the judge granted it. This juror was also charged with “contempt of court,” and all of this resulted in a waste of money, time, and resources.

Jurors and Blogging: During voir dire, the Judge questioned a potential panel regarding whether they “blog”. One individual admitted that he did. This led attorneys from both sides to the person’s “edgy blog” but also to his Twitter posts from the courtroom. “Sitting for jury duty crap. Hating it immensely. Please don’t pick me. Please don’t pick me.” Without this specific discovery, this person might have been selected, and his bias could have altered the course of the litigation.

Another potential juror updated his Facebook status to: “Sitting In Hell ‘aka’ Jury Duty”. A traditional jury questionnaire would not have identified this individual. A paralegal happened to find it while sitting in court. This information was procured despite privacy settings (he belonged to a Cincinnati, Ohio network on Facebook, set up so all 238,000 people could see).

Opening Statements and Closing Arguments

Social media content can be used to tailor opening statements and closing arguments. Information on social media can provide important information about a juror’s values and opinions. If a juror is a “fan” of a particular environmental group or charity, or an avid animal lover, a savvy lawyer can incorporate analogies or anecdotes into her questions to jurors to gain sympathy for her client. Several legal cases have addressed the issue of obtaining authorization from a plaintiff or defendant to view private portions of their networking sites. In certain cases, the court may require that a party provide authorization for private, deleted, or archived material.

In one case, the judge held that private material in a plaintiff’s social networking site was ‘material and necessary’ for the defense of a personal injury suit. The plaintiff had sued a chair manufacturer because she sat on the chair and it collapsed. She claimed “loss of enjoyment of life” due to her injuries, and she was bedridden in severe pain. She then proceeded to post pictures of herself standing in front of her house, smiling and apparently happy. The attorney for the defendant chair manufacturer requested access to the private portions of the plaintiff’s Facebook page. She was ordered by the court to authorize examination of private, deleted, and archived portions of her site. This case in Colorado held that private contents of a party’s social networking site were discoverable when the information posted on the public portions contradicted the claims in her lawsuit.

As Providers Consider These Reminders

* Remember that everything you put on the internet gets copied to various places the moment it is created.

* Your input is neither anonymous nor private

* Your postings leave a trail all over the planet.

* Nothing is really deleted; nothing is inaccessible.

Goes Without Saying:

- Always choose the highest possible security settings

- Don’t talk about medical or legal matters on social media

- Use discretion when posting messages or photographs

- If someone tags you on a photo, consider clicking “remove the tag” if it isn’t a picture you would post yourself.

- Watch out for moles: Sometimes people who are investigating an issue will try to “friend” you to gain access to your information.

- Assume that everyone can see everything on your pages and post accordingly

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