Social media discovery has become standard practice in product liability cases, but it is often not leveraged effectively. Below are five tips for increasing the usability of social media in personal injury cases.
1. Mining the Data
Social media sites cannot and will not provide user information and history. Therefore, counsel seeking social media have to go to some other source to get this information. One avenue is to ask the opposing party to provide social media information through written discovery requests or depositions. Another source of information is employment and medical records. An internet search of an email address or user name can reveal otherwise hidden social media accounts that are listed under aliases or privacy settings. Finally, where opposing parties or witnesses work for or have an affiliation with a governmental entity, a public records request can yield social media data.
2. Go Beyond Facebook
The ever-evolving landscape of social media offers a seemingly interminable list of sources for new and innovative social media evidence. A search for social media evidence should include online dating sites, videogaming websites, and Youtube. Even seemingly innocuous sources can be a game changer in litigation. In a catastrophic personal injury case where the plaintiff claims an inability to perform basic movements, consider the jury impact of that same plaintiff holding themselves out as an active individual on an online dating site.
3. More Than Just the Opposing Party
Social media can be used in an investigatory fashion to identify and locate witnesses and potential witnesses. Witnesses can also be evaluated for potential biases and credibility challenges. Consider a situation wherein a witness claims to be wholly independent, but is "friends" with the adverse party on Facebook or Linkedin.
The venire can be a rich source of social media. Jurors and potential jurors sometimes post their opinions about jury duty and your case on social media. Such activities could reveal otherwise-hidden biases and could lead to challenges for cause, dismissal of a sitting juror, or a mistrial. While a potential juror may state in voir dire that they can be fair and impartial, their internet activities may uncover a bias.
4. Use It or Lose It
Once social media evidence is gathered, it is only useful if it is deployed effectively. Deciding when to use social media information requires a strategic analysis of the particular facts of each case. Early introduction of social media evidence may be useful in encouraging settlement or sending a message to the adverse party about the relative strengths and weaknesses of a claim or defense. For those cases destined to go to verdict, saving social media evidence to impeach a party or witness could potentially cause a dramatic "gotcha" trial moment—but introducing untested evidence at trial could yield disastrous results.
5. Authenticate and Admit
Introduction of social media evidence requires successful navigation of the Rules of Evidence. The first evidentiary hurdle anyone who seeks to introduce the evidence will face is authentication. In the age of aliases, private accounts, and Twitter handles, it is easy for a purported author of statements on social media to claim "it wasn't me," or that the picture or video was taken "before the accident." One method to counter these denials is to retain a forensic computer expert who can review metadata or IP address to link the evidence to a particular time, place, or person. Another effective method is to get the person depicted in the evidence to buy into the evidence. This involves the introduction of relatively innocuous social media evidence from an account or server, and confirmation from the individual that they are the owner of the subject account, and they are the author of posts on that account. After they confirm that they created the innocuous posts on the account or profile, they will be hard pressed to deny that the target social media evidence was placed on their account by someone else.
The second hurdle is relevancy. The party opposing the introduction of social media evidence can claim that the purpose of introducing social media evidence is to embarrass or disparage them. The proponent of social media evidence must be able to articulate the relevance of the evidence that they seek to admit. Social media evidence can be deemed relevant if it bears on a party or witness' truthfulness or credibility, or the claims or defenses at issue in the case.