1. Roll Up Your Sleeves
You should research your litigation opponent’s social media presence early in each case. Consider putting social media research right after “implement litigation hold” (for both sides) on your checklist because it’s time-sensitive. Early in the case, you will not yet know whether the plaintiff is a prolific poster or a casual user. That’s up to you to discover—and you cannot passively wait until depositions to ask. If you are not a social media savant, learn from your colleagues or delegate the task to a curious and intrepid colleague, often a younger associate, who will turn over each rock and inspect whatever crawls out.
If you are litigating a larger matter, consider whether the economics favor retaining a vendor. Numerous vendors have staff members who specialize in locating, collecting, reviewing, and summarizing plaintiffs’ social media posts. For example, a vendor can investigate significant numbers of plaintiffs in a putative class action or personal-injury mass tort. You will need to educate the vendor about the case and what posts, pictures, and other content interest you. But once the vendor is up and running, it makes deposition preparation more efficient and decreases client cost.
Next, whether or not you have already hit gold, it will be time to broadcast your intentions to the other side. You should ask for social media handles on all platforms the plaintiff uses. Your discovery requests need to make clear that you expect all relevant social media posts and messages to be preserved and produced. Consider moving to compel, especially when you have evidence that the plaintiff has not been forthcoming in discovery responses. See Rhone v. Schneider Nat’l Carriers, Inc., No. 15-CV-01096, 2016 WL 1594453, slip op. at 2–3 (E.D. Mo. Apr. 21, 2016) (ordering a plaintiff to provide a “Download Your Information” report from her social media profile after defendant discovered relevant information on public portions of her account page). Multiple courts have ordered plaintiffs to comply with social media discovery and have sanctioned plaintiffs for failing to do so.
2. Understand Each Platform
As the number of platforms grows, and because the platforms themselves are constantly changing, attorneys should be systematic about understanding the unique characteristics of each site or app. Attorneys are not only advised to learn the basics of these platforms; some state ethics committees even require it. See, e.g., New York State Bar Ass’n Social Media Ethics Guidelines No. 1.A (2019) (“A lawyer has a duty to understand the benefits, risks and ethical implications associated with social media, including its use for communication, advertising, research and investigation.”).
Take note of new features that may hide pertinent information (new privacy features, expandable comments, hidden tabs) or metadata (timestamps, internet protocol (IP) addresses, and other authenticity devices). Consider creating a checklist of sites to search. Review resources that summarize current privacy settings so you know what information to seek if you need to move to compel. Use your vendor, if you have one.
3. Look Beyond the Plaintiff
It has become common practice to investigate plaintiffs’ social media profiles for activities, opinions, relationships, and health or financial status. Although a central component of discovery, this practice often overlooks an important feature of social media profiles: They are curated by their owner (and sometimes their owner’s counsel). As individuals become savvier about their online presence, attorneys must keep pace (within ethical bounds, of course). Presumably, you have run a public records search on the plaintiff. Use that information to research family member posts—especially items like pictures of a personal-injury plaintiff and biased posts from a disgruntled ex-employee.
As plaintiffs increasingly expect to be researched, attorneys must accordingly use the “networking” function of social networking. Family members, friends, colleagues, group affiliations, and general online activity are invaluable resources for obtaining a comprehensive understanding of a plaintiff. What posts has the plaintiff liked? What pages has the plaintiff commented on? Does the plaintiff follow someone involved in similar litigation? Does the plaintiff follow legal publications that are negative toward your client? Social media can reveal a lot about a plaintiff, but only when accessible.
4. Be Aware That Some Sites Leaves a Trail
Attorneys should further note that searching some social media sites is not always as anonymous as it seems. For example, some platforms will show their users who has viewed their social media content, with premium members having the ability to view the last 90 days of viewing history. Placing a litigant on notice that his or her social media content is under examination—and by whom—can present a host of issues for litigation counsel and may cause parties to tighten data privacy settings on their social media platforms or potentially prompt unscrupulous parties to respond by spoliating their online evidence. While researching addresses or substantiating employment details may seem innocuous, attorneys must be mindful of the research trail they leave behind.
5. Be Forewarned That Networking with the Opposition Is Not Wise
There are significant ethical considerations for lawyers on establishing a networking connection with their opponents on social media; chief among them is the obligation to identify oneself as a lawyer and to refrain from direct communication with represented parties. See In re Robertelli, 258 A.3d 1059, 1062 (N.J. 2021). In Robertelli, the New Jersey Supreme Court explains that “enticing or cajoling the represented client through a message that is intended to elicit a ‘friend’ request” is a violation of the ethical rule that bars communications with a represented person. Id. at 1073–74. Beyond viewing publicly available information that is “out in the open” online, lawyers should entirely avoid messaging or otherwise connecting with opponents on social media.
