Social Media Cube Credit: Stanislaw Mikulski/Shutterstock.com

 

This article is Part 2 of a two-part series. Part 1 on technologies to use in depositions and trials published on LTN in February.

 

Social media is everywhere these days. What was once simply a fad or a place to share clever memes and viral videos is now a legitimate tool for business and social interaction. It should come as no surprise, then, that social media is having a significant impact on the practice of law.

In the past five years, social media's involvement in legal cases has increased exponentially. It's now common to see Facebook posts or tweets entered as evidence in depositions and trials, with publicly shared pictures and more having massive implications for proving allegations, particularly in areas like insurance fraud.

With social media comes a host of new considerations for practicing law, including impacts on discovery, evidence, ethics and trial procedure. Lawyers must understand social media and its potential reach if they want to successfully navigate today's complex social media landscape.

Impact on Discovery Obligations

Given the rapid rise of social media, it's not surprising that we're seeing more and more of it in the ordinary course of discovery. Social media is subject to the same standards as any other evidence when it comes to discovery requests and relevance.

Many attorneys are tempted to make blanket discovery requests for all social media, but these are likely to be denied as overly broad. Instead, just like with any other evidence, the requests must be reasonably calculated to lead to the discovery of evidence relevant to the claims of the case. Therefore, social media discovery requests need to be tailored to the specific case at issue, otherwise they may be seen as an improper fishing expedition.

It's also important for attorneys to advise their clients that anything they post on social media is potentially discoverable. Clients should avoid posting anything going forward that could impact the case. Lawyers should do thorough social media searches of past posts and continue to do them throughout the life of the case—not just of their own clients and witnesses, but of every party involved. A simple social media search could lead to discoverable evidence that might change the entire outcome of a case.

Capturing and Authenticating Social Media

All normal authentication rules for discoverable evidence apply to social media, including Federal Rule of Evidence 901. Any piece of social media offered as evidence, whether it's a post, a photo, a video or something else, must be authenticated by the person who created it in order to be admissible.

There are several ways to capture social media for authentication. Some can capture a social media webpage in its entirety, creating a PDF with metadata. Others can search several social media sites at once, downloading all public information and generating PDFs of the evidence. Both of these options are far superior to doing simple screenshots and provide reliable evidence that can be authenticated by witnesses.

Another option are native evidence capture tools that allow you to display social media pages live during depositions and capture witnesses' live manipulations of them—including scrolling, mouse clicks and more—on video as they authenticate the evidence. The video is then synced to the deposition transcript to create a record of authentication for your social media evidence.

Ethical Considerations

Social media is now such a prominent part of legal practice that several ethical rules and opinions address its use. The ABA Model Rules of Professional Conduct obligate lawyers to understand social media and educate themselves on developments in how it impacts the profession. Many states, including New York, California and Pennsylvania, have established specific requirements for its use. Among other things, rules now address how attorneys may interact via social media with clients, judges and jurors, how social media information can be used in disputes, the propriety of online attorney endorsements and much more.

Spoliation also applies to social media evidence. Lawyers and their clients need to be aware that deleting information from social media can have the same consequences in a legal case as shredding physical documents.

In short, any rules that have applied to past practice should be extended to social media and all other online activity. Ignorance of rules and standards will not be seen as an acceptable excuse. Judges increasingly have experience with technology and social media, and lawyers are obligated to understand how to use it and how it can impact legal matters.

Common Pitfalls to Avoid

As useful as social media can be, it also brings with it many pitfalls that could derail your case. The first thing for lawyers and clients to understand is that privacy settings on social media do not mean that social media content is shielded from discovery. The base assumption should always be that anything posted on a public site for others to see can potentially be used in a lawsuit and that there's no reasonable expectation of privacy.

Social media can also lead to mistrials if improperly used. Often this involves jurors and their social media use. It's critical that you update your jury instructions to address social media, making it clear that jurors are not allowed to post about a case on social media, interact with anyone else involved in the case or conduct their own research to supplement the case evidence.

Jury selection and social media can also be tricky. While passive research of jurors or potential jurors is allowed, lawyers are strictly forbidden from interacting with jurors in any way, including via social media. Lawyers should exercise equal caution when interacting with judges and other involved parties.

Social Media Vigilance

Social media isn't going away anytime soon. When it comes to social media, lawyers and their clients need to think proactively, not reactively. With consequences as severe as ethics violations and mistrials on the line, it's important to approach social media with caution and familiarize yourself with how it's impacting the practice of law today.

 

Michael Murray is the Director of Client Solutions for Veritext Legal Solutions. Murray stays on top of litigation technology trends and travels throughout the nation speaking and providing informative and entertaining, CLE's, educational instruction and product demonstrations to legal professionals.