- Find your sources. The first step to finding relevant social media evidence is identifying which platforms or services the claimant spends time on. Claimants may not only comment or post relevant communications on Facebook, Twitter, or LinkedIn, but a claimant might also discuss pertinent issues on topic-specific forums, chat rooms, or websites. Today, there are over 200 popular social media sites. Consequently, you should consider running a broad Google search and a people search to identify sources of evidence. People–search engines such as Pipl.com or ZabaSearch can provide a list and links to active accounts for an individual using their full name, commonly used username, email address, or mailing address. Running a people search could produce new social media accounts or even lead you to uncover a claimant’s anonymous or fake account.
- Understand your sources. Before you access a claimant’s social media activity, you must learn how the platform or service operates, including any applicable privacy settings. Is all of a user’s activity public, including comments, posts, likes, etc.? Do you have to “friend” or “follow” the user to access their activity? Can a user’s activity be concealed, modified, or otherwise deleted? You should investigate these questions before attempting to access a claimant’s activity. The answers to these questions will not only govern how you access the information, but the answers may determine whether you can access the information at all. Furthermore, once you understand how the social media platform operates, you may find it necessary to remind claimant’s counsel of the obligation to preserve relevant content. Under ABA Model Rule 3.4, a “lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.” Knowing that some platforms permanently delete a user’s activity once it has been removed or modified, claimant’s counsel must advise the claimant of their duty to ensure relevant content is not destroyed.
- Access account information ethically. Before accessing a claimant’s social media account to collect information, you must determine whether the information is “publicly available.” Publicly available information is social media activity or information that is visible to anyone and does not require direct contact with the claimant. As such, an attorney may access and review public portions of a claimant’s social media page. Private or semi-private information, however, requires the viewer to “friend” or “follow” the claimant to access their social media activity. Accessing private social media activity raises ethical considerations and boundaries that you must research to avoid committing a violation. A fundamental boundary is the prohibition against communicating with a represented party. ABA Model Rule 4.2 is usually interpreted as prohibiting an attorney or his agent—including investigators and third-party vendors—from making a friend request to a represented party. Similarly, an attorney violates her ethical obligations by attempting to gain access to a private account using a fake profile or other deceptive tactics. Such conduct also violates ABA Model Rule 8.4. The ethical boundaries of social media investigation are a serious issue that you must consider when developing your discovery strategy. The opinions and guidance vary from jurisdiction to jurisdiction and are undecided in some instances.
- Properly preserve relevant posts. It is important to properly preserve social media evidence in a manner that retains all available metadata and generates a “hash value” for verification and authentication purposes. In order to admit social media information into evidence, you must be able authenticate the social media activity by establishing authorship. Screen shots alone are not “self-authenticating.” At a minimum you may be required to produce a witness declaration from someone familiar with the social media post or activity. The better practice is to provide circumstantial evidence in the form of metadata. Many social media activities, including Facebook messages, contain a number of unique metadata fields that provide the unique circumstantial evidence sufficient to establish authorship.
Amanda P. Parker is an associate with Benesch in Cleveland, Ohio.
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