Kris Olson, BridgeTower Media Newswires
You may harbor no desire to tweet or post Facebook status updates.
But if you remain in the dark as to how your cases can be affected by the trove of content being posted to social media sites by clients, adversaries, witnesses and jurors, you may be doing your clients a disservice — and, in some cases, falling short of meeting your ethical obligations.
Many “seasoned” attorneys continue to be mystified about what social media is and how it can be utilized.
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Do I really have to know about social media?
Yes. Along with a majority of states, Massachusetts has adopted a version of Comment 8 to the ABA’s Model Rule of Professional Conduct 1.1, which requires attorneys to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, and engage in continuing study and education.”
In “The Cybersleuth’s Guide to the Internet,” now in its 14th edition, authors Carole A. Levitt and Mark E. Rosch note that the New Hampshire Bar Association Ethics Committee has taken things a step further, advising lawyers that they “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.”
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How do I “obtain” social media information?
In many cases, much of what is posted to social media is publicly available, and a lawyer will be on safe ground reviewing and saving material that merely requires an internet connection to access.
Indeed, in their book “Social Media as Evidence,” California attorneys Joshua Briones and Ana Tagvoryan write that informal discovery of this nature can be a “fruitful and cost effective” alternative to formal discovery.
While there is no expectation of privacy in public content, information that not everyone can see is trickier. Facebook users can restrict their posts to “friends only,” and Twitter accounts can be made private, for example.
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To gain access to that information, can I just “friend” an adverse party or witness?
If that person is represented by counsel, the answer is clearly “no.” That would be a violation of Rule of Professional Conduct 4.2, which reads: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
“Social media doesn’t change any obligations; it just places them in a different forum,” says Boston attorney Carol A. Starkey, who has been working with MCLE since 2012 on the subject of social media and how it can be utilized.
The rule extends to a lawyer’s agents. So it is not a viable workaround for a lawyer to have a paralegal — or anyone else — do the “friending.”
The answer is less clear if the target does not have counsel. Briones and Tagvoryan point out that the New York City bar has “opined that an attorney may engage in the truthful, non-deceptive ‘friending’ of unrepresented persons.”
In other words, a lawyer just needs to steer clear of “creating a fraudulent profile that falsely portrays the lawyer or agent as a long-lost classmate, a prospective employer or a friend of a friend,” they write.
However, the Philadelphia Bar Association Professional Guidance Committee has declared that an attorney must reveal that he is seeking information “for possible use antagonistic to the witness.”
Once that disclosure is made, good luck with having that friend request accepted, Rosch says.
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But I can subpoena the social media companies, right?
Actually no, at least not for everything.
Not only is Facebook on record as being willing to fight subpoenas on its users’ behalf, but cases, including Crispin v. Christian Audigier out of the Central District of California, interpreting the Stored Communications Act suggest that a user’s “content” on social-media sites — at least the webmail and private-messaging components of them — are protected from intrusion by the SCA.
The judge largely “punted” on the SCA’s applicability to wall postings and comments, Levitt and Rosch note, but did imply that they would fall into the same category, if “access was limited to a few.”
That does not mean subpoenaing a social media company will always be fruitless. The SCA does allow social media companies to divulge “customer records,” as distinguished from content, “to any person other than a government entity.”
That can be “an important tool for lawyers to prove who owns an account when trying to get a social networking profile admitted into evidence, especially if the profile owner has used a pseudonym,” Levitt and Rosch point out.
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How successful will efforts be to obtain social media in formal discovery?
Fairly successful, especially if the party can establish that its adversary “has put some subject at issue to which social media content may be relevant” and can show that there is additional relevant evidence to be obtained, though ideally, discovery requests would be drafted as narrowly as possible, Briones and Tagvoryan write.
“When the relevancy of the discovery is questionable to start with, the court is much less likely to allow extremely broad discovery requests,” they write.
Nonetheless, they recommend adding social media accounts or profiles to the often boilerplate definition of “document” in discovery request templates.
Briones and Tagvoryan also suggest that a consent agreement for social media documents may well be worth exploring. Social media sites will often honor such agreements, provided they contain an indemnification clause protecting the social media provider.
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What should I do before requesting discovery or a consent agreement?
Briones and Tagvoryan recommend first ascertaining whether the subject even has social media accounts. Public information can then be browsed through, and any “damning evidence” downloaded before the subject has a chance to delete it.
Attorneys should know how to search Facebook by name, email address or phone number to locate profiles, and “Social Media as Evidence” walks through other creative search techniques and online resources to assist in the sleuthing.
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Speaking of deleting, is it a good idea to tell my client to “clean up his social media”?
No. In fact, that is exactly what an attorney said to his client in a Virginia wrongful-death suit in Lester v. Allied Concrete. Unfortunately for him and his client, defense counsel had already found and printed copies of photos the client deleted.
The attorney then dug the hole deeper when he allowed his client to testify that he did not have a Facebook account, which both knew to be false.
The spoliation sanction cost the attorney $542,000 and his client $180,000 to cover their adversary’s counsel fees and costs.
In U&I Corp. v. Advanced Medical Design out of the Middle District of Florida, a defendant company was sanctioned for failing to document its efforts to locate and produce emails contained in its employees’ home personal computers.
“The reasoning in this case suggests the very same principles could be applied to social media data on home personal computers of its employees,” Briones and Tagvoryan write.
They suggest companies update their document retention policy to include social media activity, perhaps treating it like email.
“By having established processes and following them, adversaries in litigation will have a hard time arguing that the company has destroyed relevant, and possibly damaging, information,” they say.
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Are there any resources to help me retrieve social media information?
Levitt and Rosch point their readers to “a number of services that have been created for the sole purpose of crawling the publicly available portions of profiles and storing copies of them as they change over time.”
Not only do these services automate the process, but the vendors generally “provide some sort of verification and authentication of the capture information,” including “metadata,” such as the dates, times, GPS information and computers from which the content was posted.
Examples include ArchiveSocial, Nextpoint, PageFreezer, Social Evidence and X1 Social Discovery.
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Once I have social media information, can I use it at trial?
You will need to authenticate a tweet or Facebook posting in order to have it admitted into evidence.
When Starkey and Boston attorney Michelle R. Peirce give MCLE presentations on this subject matter, they suggest reviewing the Supreme Judicial Court’s 2010 decision in Commonwealth v. Williams for one example of what insufficient electronic authentication looks like. In that case, a witness had been allowed to testify about receiving messages from the MySpace page of the defendant’s brother, but the court deemed the foundational testimony insufficient.
“Analogizing a Myspace Web page to a telephone call, a witness’s testimony that he or she has received an incoming call from a person claiming to be ‘A,’ without more, is insufficient evidence to admit the call as a conversation with ‘A,’” the SJC wrote.
The foundational testimony did not identify the person who actually sent the message, and there had been no expert testimony that no one other than the defendant’s brother could communicate from that Web page, the court said.
In addition to presenting a witness with personal knowledge of the tweet or Facebook post being written, received or copied, Peirce advises that the computer itself can be searched to see if it was used to post or create the information.
How can social media help with my jury?
Starkey and Peirce stress in their MCLE presentation that there is a strong public interest in identifying jurors with improper biases and advise attorneys to educate themselves about jurors’ public presences on the internet without crossing the line into improper juror “communication.” That would include requesting access to a private area on a juror’s social media page.
A site like LinkedIn, which alerts a user when someone has reviewed his profile, presents a potential complication, as does Facebook, which may suggest an attorney as a “friend” once the attorney has visited the user’s page.
While not 100 percent clear, ABA Formal Opinion 466 at least suggests that such automated notifications would not constitute a violation of Rule of Professional Conduct 3.5(b).
In addition to helping pick a jury, social media can also be used to monitor for juror misconduct during a trial. While it is common for jurors to be instructed to refrain from social media use, either to conduct independent investigations or vent their feelings about a case, there have been now-infamous examples of jurors revealing a prejudice against or relationship with a defendant that they had concealed during voir dire.
