Dos and Don’ts: Tips for Using Social Media as a Litigation Tool

Social media can be a huge, often underused, resource for trial lawyers. However, attorneys must consider ethical rules governing their practice prior to engaging on social media. Various model rules of professional conduct provide guidance on proper use of social media in the legal field, including, but not limited to: Rule 1.6 (Confidentiality of Information); Rule 4.1 (Truthfulness in Statements to Others); Rule 5.3 (Responsibility Regarding Non-lawyer Assistant); and Rule 8.4 (Misconduct). On March 17, 2021, Vertitext Legal Solutions hosted a CLE guided by Michael Murray which addressed social media, discovery, ethics, evidence, and sanctions, and which contained interesting tips for trial lawyers utilizing social media as a tool in litigation.

1. Attorneys must obtain a copy of content posted by clients on their social media to comply with requests for production or other discovery requests.
2. Attorneys must make reasonable efforts to obtain content about which they are aware if they know or reasonably believe it has not been produced by their clients.
3. Attorneys should advise clients about the content of their social networking websites, including their obligation to preserve information, and the limitations on removing information.
4. Attorneys may, and should, address social media in jury instructions. See below for more on jury instructions.
5. Attorneys may advise clients to change the privacy settings on their social media page. In fact, lawyers should discuss privacy levels of social networking websites with their clients, as well as the implications of each privacy setting.
6. Attorneys may advise clients to make information on social media websites “private” but may not advise or permit them to delete or destroy relevant content from their page so that it no longer exists.
7. Attorneys may use information on social networking websites in a dispute or lawsuit.
8. Attorneys may review a juror’s internet presence.

Below are a few sample jury instructions on social media pulled from model federal instructions. Attorneys should review their jurisdiction’s model instructions for further guidance on the matter.

• To remain impartial jurors, however, you must not communicate with anyone about this case, whether in person, in writing, or through email, text messaging, blogs, or social media websites and apps (like Twitter, Facebook, Instagram, LinkedIn, WhatsApp, and Snapchat).
• You also cannot conduct any type of independent or personal research or investigation regarding any matters related to this case. Therefore, you cannot use your cellphones, iPads, computers, or any other devise to do any research or investigation regarding this case, the matters in this case, the legal issues in this case, or the individuals or other entities involved in this case. And you must ignore any information about the case you might see, even accidentally, while browsing the internet or on your social media feeds.
• Many of the tools you use to access email, social media, and the internet display third-party notifications, pop-ups, or ads while you are using them. These communications may be intended to persuade you or your community on an issue and could influence you in your service as a juror in this case.