Social media use in litigation is not as novel as it once was. We have case law, ethical opinions, ad professional rules of conduct that have been decided, presented, and clarified when it comes to how to gain access to social media material to use as evidence without breaking ethics standards.
Issues presented by social media litigation focuses on 6 main categories:
- Constitutional right to a fair trial
- Obtaining and authenticating social media evidence
- Privacy concerns
- Preservation of social media evidence
- Fourth Amendment search & seizure concerns
- Professional responsibility/ethics board concerns
The key to remember is that basic principals of requesting, securing and preserving evidence are the same offline and online.
Jury/Party Research with Search Engines
Tools: It seems to be a common expectation that lawyers will search online and see what comes up on a juror during voir doir. In some jurisdictions it is actually considered part of an attorney’s due diligence.
Traps: If a general search using Google or other engine comes up with information that is publicly accessible and not password protected it seems to be fair game. However, an attorney or third parties working for the attorney may not use deception to get information – so no pretending to be someone else to “friend” the juror/party and access their private information. However you should make sure that there is no communication should occur between the lawyer and the juror as a result of the research – so no communication should be received by the juror as a result of the research done by the attorney. What constitutes a “communication” isn’t always clear.
Tips: Most social media sites will respond to subpoenas, but they like you to seek consent from the individual whose information you wish to view first. This can be done within the usual evidence production request. You may also want to put in a preservation order so that the party does not change their social media information prior and during the trial.
References: Rules: NY Professional Conduct 3.5(a)(4), 3.5(a)(5), 3.5(d), 8.4 NY City Bar Formal Opinion 2012-2
Jury/Party Research with Apps
Tools: There are a number of apps that run on tablets and smart phones that are available for use prior-during-and after litigation. These help organize paperwork and make searching documents easier and more accessible during litigation
Traps: Before using any of these apps make sure to read their Terms and Conditions so that they align with your professional responsibilities as an attorney.
Tips: One example of a trial app listing is at the Law Library: University of Wisconsin-Madison Trial and Litigation iPad Apps.
References: ABA Rule 1.1 Duty of Competence
Juror/Party Research During Litigation
Tools: General searches on parties may be continued throughout the litigation process to monitor for juror or party misconduct.
Traps: The misconduct generally takes three forms: 1. “Friending,” “following,” or looking up new “friends” (fellow jurors or parties to the action). Problem: improper deliberation, contact, and research. 2. Reaching to the social network’s “brain trust.” Problem: inclusion of opinions not privy to all facts presented at trial. 3. Publishing trial information via Twitter, Facebook, etc. Problem: creation of an audience, which can alter the juror’s deliberation process.
Tips: Jury Instructions are being developed in various courts to address these issues before they happen. Make sure you speak to the judge about this in your pre-hearing consultation with the judge.
References: ABA Rule 1.4, ABA Rule 4.4
Litigation File Management
Tools: Internet-Based Cloud Storage Services
Traps: Attorneys need to be cognizant of the security risks that may exist with some of these providers that can lead to violations of the duty of confidentiality, etc.
References: Massachusetts Bar Association Ethics Opinions 12-03, ABA Rule 1.6(a) Confidentiality
Requesting evidence from Social Media Sites
Tools: Consent Forms to be signed by the party. Send a subpoena to the social media site.
Traps: Make sure you are requesting only the information or the time range that is relevant to the case – be careful of the breathe of your discovery request when it comes to this kind of information. Printouts of the social media sites may need to be authenticated in order to be admitted into evidence which is different from when you receive he information directly form the social media site.
Google (Includes YouTube): http://www.google.com/transparencyreport/userdatarequests/legalprocess/
References: People v Harris, 2012 WL 1381238 and Griffin v Maryland 419 Md. 343,19 A.3d 415, Md., 2011
“Friending” the Judge
Tools: Most social media sites do not have a filter to restrict who you friend or not – just the ability to automatically follow (like Twitter) or to send a friend request (like Facebook).
Traps: There are no outright prohibitions of lawyers friending judges. But cautions abound – especially when the attorney is appearing before the judge he is friends with online. The appearance of a conflict or interest or bias may lead the other party to have the judge dismissed from the case.
Tips: It is best not to friend the judge or temporarily unfriend during the litigation process.
References: American Bar Association Formal Opinion 462 (Feb 21, 2013) – Judge’s Use of Electronic Social Networking Media (ESM), Supreme Court of Ohio, Board of Commissioners on Grievances and Discipline Opinion 201-7 (Dec 2010), ABA Rule 1.7, and ABA Rule 8.2