Social media is pervasive in the personal and business routines of clients and their adversaries. It also touches every stage of litigation, from fact investigation to discovery to evidence submission. Lawyers can’t afford to overlook its value as a source of information and evidence.
While many lawyers have embraced social media, some are tempted to stick their heads in the sand rather than delving into the social media labyrinth. That’s dangerous. In October 2013, when Twitter filed its initial public offering, it revealed staggering numbers, including: 200 million active monthly users, 500 million average daily tweets and 2012 revenue of $316.9 million. Twitter is not alone—Facebook boasts 1.27 billion monthly active users and, according to its first-quarter earnings report in 2014, its estimated 2013 revenues were more than $7.82 billion. That’s billion with a “b.”
Social media isn’t going anywhere, and it isn’t just for college students anymore. The judiciary, opposing counsel, witnesses, clients, prospective clients, jurors and experts are amassing impressive digital footprints on social media sites.
Here’s what’s out there on social media—including Facebook, LinkedIn, Twitter, Google +, YouTube, MySpace and blogs—how to find it, how to use it in litigation and how to think through the ethical issues it raises.
Facebook users can create a page on which to share information, photos, videos and other content. Privacy settings permit public and private posts, giving many users a false sense of security. This makes Facebook, like all social media sites, a treasure trove of information regarding where people were at a given time, what they really thought and said about a particular topic, and how they really behaved (posted photos are particularly helpful in this respect). LinkedIn is similar to Facebook, but it’s for professional pursuits.
Google + is similar to Facebook in terms of content and purpose, but it has not amassed nearly the membership numbers of its main competitor. It offers additional functionality aimed at limiting certain posts to “circles,” or groups of specifically targeted people. Members can use this functionality to protect grandma from posts meant for fraternity brothers’ eyes only. Of course, that also makes it a useful source of evidence.
MySpace is an older social media site, somewhat similar to Facebook, which younger people predominantly used to share music. Though MySpace membership has fallen far short of Facebook over the years, it is relevant to lawyers because early social media case law references it.
Twitter provides users a platform to share relatively short messages, called tweets. The hashtag is a product of Twitter and serves as a way for users to categorize and search content. Users also use hashtags with short phrases to comment on a topic.
YouTube allows users to upload, share, and comment on video content.
A blog is an easy-to-use forum where a user can quickly upload content and share it with anyone who subscribes to the blog or stumbles across it through a search engine or other link.
21st Century Tactics
From initial case evaluation (Did my client admit liability on his Facebook page?) to trial (Do any potential jurors have publicly available information that reveals a bias for or against my case?), social media can yield valuable information that can impact litigation strategy. The ethical boundaries of using social media during litigation are evolving, but the American Bar Association provided some guidance in its Formal Opinion 466, issued April 24: “Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence.” The opinion draws the line at communicating, directly or indirectly, with a potential juror.
At the outset, it’s critical for lawyers to advise clients about the consequences that social media use might have for litigation. That said, beware the spoliation trap, and remember: Disable, don’t delete. Lawyers can advise clients to take down their Facebook pages, but they shouldn’t advise them to delete content. By the same token, at the inception of a case, lawyers should consider sending a preservation letter to opposing parties that covers social media.
During the fact-investigation phase, attorneys should carefully plan a social media search, tailored to the demographics of the individual client and opposing party. An increasing number of young adults maintain Facebook accounts but spend a greater proportion of their time on Instagram, a site for sharing low-resolution photographs with comments. In contrast, searching LinkedIn for admissions from a CEO or a potential witness might yield more fruitful results than a YouTube or MySpace search.
Social media also is playing an increasingly prominent role in jury misconduct, with jurors using Facebook to take a poll on how to decide facts, conducting independent research, and tweeting previews of the verdict despite admonishments from the judge to stop. Lawyer and judicial social media conduct is likewise the subject of much discussion and ethical opinions.
In this digital age, social media is as important to litigation as email, medical records and the proverbial smoking gun itself. Lawyers simply cannot afford bury their heads in the sand.
Katherine Bandy Weber is of counsel at Wilson Elser Moskowitz Edelman & Dicker in Dallas. Her practice focuses primarily on intellectual property and commercial litigation.