Social media and your defense themes
Posted: 12:45 pm Fri, September 14, 2012
By Christy Mennen
Don’t ignore this vast supply of key information
The legal world is buzzing about social media’s impact on corporate defense strategies.
Investigating opposing parties, developing strategic discovery techniques and ensuring admissibility of social media evidence at trial are key issues facing attorneys.
Although at first glance it may appear costly or time consuming to track evolving social media considerations, your clients will be at a great advantage if you explore and adopt the tactics and techniques discussed in this article.
Not only will it lead to better business and litigation results, but also it will give your clients a clear edge over those adversaries who have yet to embrace the true potential of this emerging area.
Social media’s relevance
Social media investigations of claimants, plaintiffs, co-defendants and fact witnesses are valuable in every case. Given the current 845 million-plus Facebook users alone, the chance that an opposing party to your litigation has posted potentially adverse or incriminating information online is extremely high.
Courts across the country agree that social media evidence bears relevance to pending litigation. The key to the relevancy determination appears to be whether the information depicts a snapshot of the user’s physical or mental state at the time of the posting. Bass v. Miss Porter’s School, 2009 WL 3724968, D. Conn. Oct. 27, 2009.
In Zimmerman v. Weis Markets, Inc., No. CV-09-1535, May 19, 2011, the Court stated: “With the initiation of litigation to seek a monetary award based upon limitations or harm to one’s person, any relevant, non-privileged information about one’s life that is shared with others and can be gleaned by defendants from the internet is fair game in today’s society.”
Similarly, in McMillen v. Hummingbird Speedway Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (Jefferson Co. Com. Pl. 2010), the Court stated: “Facebook, MySpace, and their ilk are social network computer sites people utilize to connect with friends and meet new people. That is, in fact, their purpose, and they do not bill themselves as anything else. Thus, while it is conceivable that a person could use them as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential.”
While there is continuing debate as to the definition of “relevant” social media evidence, it is common for judges to rule that any information related to the physical or mental state of the plaintiff is relevant to the case. Likewise, in many instances, judges have allowed defense counsel to review a plaintiff’s entire Facebook profile (in some cases, even private profiles) and make their own determination of what should be deemed relevant.
Even better, courts have dismissed entire cases or limited select damages claims based, in some instances, on a single posting or photograph of the plaintiff.
For example, in In re Welding Fume Products Liability MDL, No. 03-cv-1700 (D. Oh. Jan. 21, 2010), a federal judge in the District of Ohio dismissed a welder’s product liability suit alleging total disability after the defense found Facebook photos of him racing motor boats. In another case, a Los Angeles firefighter was arrested on suspicion of insurance fraud after investigators observed that he competed in seven Mixed Martial Arts bouts — which were uploaded to YouTube and viewable by the public — while he was out of work and receiving worker’s compensation benefits.
Conducting social media investigations
A social media inquiry can quickly uncover facts and evidence that would have otherwise taken months to obtain through discovery. In many cases, a search can tell you the opposing party’s birth date, residence, close friends and family members and, if you are lucky, the circumstances leading up to the subject incident, as well as the names of witnesses and related photographs.
At the outset of the claims stage, counsel should conduct an efficient yet thorough inquiry of the opposing parties’ social media presence and provide recommendations on how it can be used to strengthen the defense strategy. Counsel can conduct searches on Facebook, Twitter, LinkedIn, YouTube, and for a more extensive investigation, internet search engines, photo sharing websites and archived information on the Internet Archive Wayback Machine.
In addition, counsel can conduct social media investigations of other parties, including the plaintiff’s spouse or family members, witnesses, co-defendants and opposing expert witnesses.
When conducting these investigations, counsel must be aware of the latest guidelines for preserving, authenticating and admitting social media evidence. It is not enough to access the plaintiff’s Facebook page, hit “print” and then offer the printout of the Web page into evidence.
Depending on the jurisdiction, some or all of the following avenues for authentication should be used:
1) Testimony from the creator of the profile and relevant postings.
2) Testimony from the person who received the message.
3) Testimony or affidavit about the distinctive aspects in the messages revealing the identity of the sender.
4) Testimony regarding the account holder’s exclusive access to the social media account.
5) Testimony from the social networking website connecting the posting to the person who created it.
In addition, counsel should consider sending preservation letters to opposing counsel directing him or her to preserve any potentially relevant social media evidence to avoid spoliation sanctions. Counsel should also use written discovery requests to address preservation concerns, including an interrogatory asking whether the plaintiff has deleted information or data since the date of the alleged incident giving rise to the claim and, if so, the date the information was deleted, the purpose behind the deletion and the nature and substance of the deleted information.
Judges across the country have shown no reluctance to impose spoliation sanctions, both monetary and by way of dismissal, when parties violate these preservation obligations. In Torres v. Lexington Ins. Co., 237 F.R.D. 533 (D.P.R. 2006), a federal judge in the District of Puerto Rico flatly denied the plaintiff’s emotional distress claims after she deleted online postings that defense counsel was aware of and had brought to her attention. In addition, late last year, attorney Matthew Murray of Virginia was ordered to pay a whopping $522,000 after instructing his client to remove photographs from his Facebook profile.
Leveraging social media tactics during discovery
Counsel’s strategy for using social media evidence will vary greatly depending on whether the opposing party has activated privacy settings.
If so, counsel will have limited access to background information, postings and photographs. It is common, however, for Facebook users to make their list of Facebook “friends” publically available, even where the remaining identifying information is kept private. In this situation, counsel has the option of using the “Friends” list to his or her tactical advantage.
For example, the list can be used to identify fact witnesses and, in turn, allow counsel the opportunity to conduct interviews early in the case or send a subpoena duces tecum requesting that the individual provide printouts of all information and photographs from the plaintiff’s Facebook profile.
Counsel should be strategic in seeking access to protected information through written discovery and depositions. Counsel will need to decide when and how to elicit private information on a case-by-case basis. In situations where the plaintiff’s Facebook page is marked private and you want to review his social media evidence prior to depositions, counsel should consider serving an interrogatory asking the plaintiff to download his Facebook profile. Another option is to consider seeking limited access to the private portion of plaintiff’s Facebook page. In an interesting opinion dated Feb. 27, 2012, a Pennsylvania judge ordered the defendant to provide his username, email and password to the plaintiff’s counsel, yet allowed the plaintiff the opportunity to change his Facebook login and password seven days after compliance with the order. See Gallagher v. Urbanovich et al., No. 2010-33148, Court of Common Pleas of Montgomery County, Pennsylvania.
If, on the other hand, the plaintiff’s social media is public, counsel is free to capture the material and decide the most effective time to produce or reveal it. Defense counsel can use the information through the course of litigation, using the “friends” list to identify witnesses to the incident or the plaintiff’s current physical or mental state, for example. It is essential that counsel investigate and preserve all relevant, publically available information early as there is always a possibility that the plaintiff will activate privacy settings at some point after litigation commences. Likewise, counsel should create a specific timeline for periodic review and capture of the evidence throughout the litigation.
There have been dramatic social networking changes over the past few years, making it impossible to ignore social media’s influence on corporate business practices and litigation. Because the legal issues associated with social media continue to change as quickly as the technology itself, counsel should regularly re-evaluate the potential social media strategies in any given case and incorporate these suggestions to improve their overall defense themes.
Christy Mennen is an attorney with Nilan Johnson Lewis. Her practice areas are product liability and mass torts. She is a 2002 graduate of the University of Iowa College of Law.