Professor John Browning gives five practical pointers for litigators using social media
By John G. Browning
In today’s Digital Age, informal discovery can be accomplished at the speed of a search engine, revealing a treasure trove of information about opposing parties and witnesses with just a few mouse clicks. With 1.3 billion users worldwide posting to Facebook, more than 271 million active users tweeting up a storm on Twitter, and 200+ million Instagrammers posting photos, the amount of content available on social networking platforms is staggering. Trial lawyers simply can’t afford to ignore all the posting, commenting, liking and sharing going on around them.
But as with any cutting edge area, the impact of social media on the law is constantly evolving, and case law is still developing — leading to uncertainty among litigators about all kinds of issues, such as what to tell a client about “cleaning up” his Facebook page or whether one can research social media profiles of prospective jurors.
With that being said, I present to you five practical pointers for litigators on navigating the uncertain waters of social media.
1. Accept the fact that social media is here to stay.
Take time to familiarize yourself with the features and functionality of social networking sites such as Facebook and Twitter. Regardless of whether you practice civil or criminal law or your area of specialization, social media content can play a critical role in your cases and you can’t afford to simply ignore it.
In August 2012, the American Bar Association (ABA) adopted changes to the Model Rules of Professional Conduct, including a change in what constitutes competent representation; now, being competent encompasses being conversant in the “benefits and risks of technology.” This is consistent with a trend in cases nationwide holding lawyers to a higher standard in using technology. Last year, for example, the Ninth Circuit held that a lawyer’s failure to investigate the online recantation of an alleged sexual abuse victim constituted ineffective assistance of counsel.
2. Communicate as early as possible with clients about their social media activities.
Litigators on both the plaintiff and defense sides of the bar need to communicate as early as possible with clients about their social media activities. Address social media postings in litigation hold/evidence preservation letters, for example. Ethics authorities in New York, Philadelphia and Florida have concluded that attorneys can advise their clients to adopt heightened privacy settings and take other steps to police their online selves so long as applicable rules regarding evidence preservation are not violated. However, you need to know the truth — warts and all — about what your client may have already posted so that these activities can be addressed within the context of the case (some posts may be embarrassing, but not relevant, for example). Too many lawyers have been taken by surprise when their opposing counsel knows more about their clients’ Facebook activities than they do.
3. Know where the ethical boundaries are when it comes to obtaining information.
Courts nationwide have held there’s nothing wrong with viewing the publically accessible online activities of a party or witness. But remember that when it comes to communicating, the same ethical prohibitions against communications with a represented party or being deceptive with third parties still apply in cyperspace. You can’t “friend” a represented party (or have your paralegal “friend” them) in order to gain access to their privacy-protected Facebook page, as two civil litigators in New Jersey learned the hard way. And you can’t pose as someone else (“false friending”) or adopt a fake online identity in order to communicate with witnesses. Not only have ethics opinions in various states addressed this, but litigators have also learned these lessons the hard way.
In Ohio, after a defense attorney’s investigator allegedly “false friended” the minor plaintiff in a personal injury case to gain access to her private Facebook page, the result was a separate civil suit for invasion of privacy — naming the lawyer, the investigator and the insurance company that assigned the case to them as defendants. In another Ohio case, an assistant prosecutor caused a mistrial (and was fired) when it was revealed that he had posed as the fictitious “baby mama” of a murder defendant on Facebook in an attempt to persuade two alibi witnesses not to testify for the defense.
4. Remember that existing rules still apply in formal discovery.
While some courts have given fairly wide latitude to parties seeking discovery of social media content (in some cases going so far as to compel disclosure of the responding party’s Facebook password), the current trend is to deny requests for production of social networking information that are too broad in scope or that seek information that’s not relevant. Litigators are best advised to tailor their discovery requests more narrowly, referencing specific claims or defenses and limiting the requests to pertinent time periods, as much as possible.
5. Remember social media can have an impact on virtually every aspect of a case from start to finish.
Courts in a number of jurisdictions, including Texas, have examined an out-of-state party’s activities on social networking sites as part of the consideration of whether minimum contacts exist such that the court can assert jurisdiction. Service of process is another issue. Courts in at least eight countries, including some federal and state courts in the U.S. (including Texas) have held that serving a party via social networking platforms, like Facebook, is a permissible form of substituted service. And when it comes to jury selection, don’t forget about “Facebooking the jury.” Courts and ethics authorities across the country (including a recent ABA Formal Opinion) have held there is nothing wrong with poking around the Facebook musings of prospective jurors, so long as lawyers don’t cross the line of engaging in actual communication with the panel member.
In at least one state (Missouri), lawyers have an affirmative duty to conduct such jury research. Just be aware of a given site’s features, such as auto-notifications to an account-holder by sites like LinkedIn or Twitter that specify an individual has viewed his/her profile or is “following” them. Choosing not to conduct such research when the other side is doing so may put your client at a distinct disadvantage — think of it as the voir dire equivalent of bringing a knife to a gunfight.
In short, social media can permeate virtually every aspect of a case. Savvy litigators in the 21st century need to learn the boundaries of using social media to their client’s advantage — whether they “like” it or not.