As most people are aware, social media has become pervasive in the daily lives of the vast majority of Americans. Social media provides us with an instantaneous way to share our thoughts and experiences with others. Doing so creates an electronic history that is stored and preserved, and, as the majority of courts have made clear, is ripe for discovery.
Like an accident scene that is subject to spoliation, investigation and review of all available social media must be done immediately upon receipt of a claim to best guard against deletion. Prompt attention and preservation of this information may provide grounds for early resolution, or even withdrawal, of claims. Here is what you need to do to identify and make the best use of social media information in your next product claim:
Step One: Conduct an Initial Search Upon Claim Notification.
Compare your search results to a claimant’s information to ensure you have the right profile. Once you do, it is important to capture all available digital profiles and information immediately upon receipt of the notice of a potential claim. This will give you a baseline status quo to measure against to determine 1) their present mental state and 2) how that changes over the course of any lawsuit. It will also provide the best opportunity to gather publicly available information before it is either hidden or destroyed.
Your initial search should include all available social media, such as Facebook, Instagram, Twitter, SnapChat, You Tube, and LinkedIn. In addition to social media, searches can be conducted for any message board postings that your claimant may be making (assuming he or she is using his or her own name). How this is accomplished may depend on what you are looking for and the nature of the claim asserted. Don’t forget about known witnesses and relatives. They too can reveal case critical information online.
To the extent you are uncomfortable running these searches, consider hiring an outside consultant. There are experts dedicated to finding this type of information. Regardless of who conducts the searches, there are two pitfalls to keep in mind:
Potential Pitfall: The Electronic Footprint. In conducting these searches it is important to proceed with caution and be cognizant that you might be leaving an electronic footprint. For example, if a registered LinkedIn user searches another person’s LinkedIn page, the person being searched will see who viewed their page. Know that this is a possibility and know your client’s tolerance for this risk.
Potential Pitfall: Ethical Rules. It is imperative to heed all ethical rules in conducting these searches and to make sure that any person who conducts the searches on your behalf do the same. These rules vary from jurisdiction to jurisdiction and to that end, at a minimum, make sure you are aware of the rules which apply to your jurisdiction and the jurisdiction in which the claim is being made. Overt trickery or deception (such as creating a false profile and friending a claimant) should never be used.
Step Two: Preserve the Information You Gather.
I once had a case where a plaintiff posted an on-line video rant against my client. I was out on walk with my dog on a Saturday afternoon when I got an urgent email telling me about the post. I immediately contacted my tech support person who was able to download and save a copy of the video before plaintiff cooled off and removed the post. The lesson here is to preserve what you find. Had I not, that key piece of evidence would have been lost. In another matter, the representative of the estate posted photographs of himself in, shall we say, a criminally compromising situation. While later removed from his feed, we were able to utilize those photographs to assist in the resolution of that suit. Capturing what the claimant’s social media looks like today also will give you a bench mark against which to compare their later postings.
Potential Pitfall: Failing to preserve and authenticate searches. Do not let your evidence go to waste. Make sure to preserve it and make contemporaneous notes authenticating it for later use.
Step 3: Issue A Preservation Letter.
Once you determine that a person has social media profiles and have preserved what you find, issue a preservation letter to either the claimant or his/her counsel. Social media material has been held to be discoverable over privacy objections. For example in Chaney v. Fayette County Pub. Sch. Dist., 2013 U.S. Dist. LEXIS 143030 (N.D. Ga., Sept. 30, 2013) the District Court of Georgia found that the plaintiff had no reasonable expectation of privacy under the Fourth Amendment related to photographs posted to Facebook. Similarly, in EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434, 436 (S.D. Ind. 2010) the Southern District of Indiana authorized discovery of social media content, noting that merely locking a profile from public access does not prevent discovery.
Potential Pitfall: Claimant deletes information. The obvious risk in sending such a letter is that the claimant is now on notice that you are looking for this information and, despite the instruction, may attempt to edit or delete content or refrain from posting anything going forward. This is why you preserve what you find publicly before sending the preservation letter.
Step 4: Discovery and the Litigation Process.
Once the matter proceeds to litigation, serve discovery requests for claimant’s entire social media history, beyond what might be easily seen through public online searches. Courts are granting such requests, particularly when counsel can clearly tie the potential social media information to the claims of the case. For example, in Thompson v. Autoliv ASP, Inc., 2012 U.S. Dist. LEXIS 85143, at *12-15 (D. Nev. June 20, 2012) the District of Nevada ordered the production of the entirety of plaintiff’s Facebook content finding that because the alleged consequences of plaintiff’s injuries included emotional distress, evidence relating to plaintiff’s social activities was relevant to the claims in the action. Similarly, in Largent v. Reed, Case No. 2009-1823 (Pa. Ct. of Common Pleas; Nov. 8, 2011) the court granted defendant’s motion to compel plaintiff to produce her Facebook username and password as her profile included status updates about exercising at a gym and several photographs showing her enjoying life with her family that contradicted her claim of damages, including depression, leg spasms and the need to use a cane.
Potential Pitfall: Failing to Use What You Gathered. You did your early due diligence, now use it to your advantage to show the court why you need wider access to claimant’s social media through the discovery process. By demonstrating to the court that claimant does post relevant information on social media you can maximize your chances of the court finding such information relevant and discoverable and provide you with greater access to claimant’s social media accounts.
It is clear that social media, its role in our lives and its impact on litigation is not going away. The smartest and most savvy practitioners make effective and proactive use of it as a tool at the outset of a claim and throughout litigation.