9/6/2017

Digging Social Media

Social media contains a trove of information—but dig with caution.

By Andrew L. Smith

This article originally appeared in the Summer 2017 issue of CLM sister publication, Construction Claims magazine. All rights reserved.

Social media is bursting with mineable information that can help in claims investigations and litigation. We are not just talking about Facebook, Twitter, LinkedIn and Instagram. There is also WhatsApp, YouTube, Snapchat and Periscope, among others. There are six different recognized types of social media: (1) social networks; (2) bookmarking websites; (3) social news; (4) media sharing; (5) microblogging; and (6) blog comments and forums. Social media also include texting, messaging, photographs, connected postings, and video footage.

It is vital we continue to consider all available avenues when investigating an individual or business through social media or otherwise seeking written discovery of this information. In all likelihood, your insured, the parties, the claimant and other key players in any claim or lawsuit are on social media and have posted information pertinent to the insurance claim or litigation.

Existing Case Law

According to the American Bar Association, between Jan. 1, 2010, and Nov. 1, 2011, there were 674 published cases involving social media evidence in some capacity. Social media posts, comments and photos can be used as evidence at trial to, among other things, attack a witness’s credibility, show a witness’s state of mind, and dispute damages. Courts typically allow discovery of personal information posted on a social networking website if: (1) it is relevant to the litigation and (2) the discovery request is narrowly tailored. Courts have also compelled interrogatory responses disclosing a party’s social networking website user names, logins and passwords, for example in McMillen v. Hummingbird Speedway, Inc., and Ledbetter v. Wal-Mart Stores, Inc.

Courts generally hold that users of social networking websites lack a legitimate expectation of privacy in the materials intended for publication or public posting. Indeed, the Facebook privacy policy states: “It helps you share information with your friends and people around you” and “Facebook is about sharing information with others.” The privacy policies of social networking websites usually disclaim responsibility for breaches of privacy measures. Facebook’s policy explicitly states, “Please keep in mind that if you disclose personal information on your page this information may become publicly available.” Moreover, “[Facebook] may disclose information pursuant to subpoenas, court orders or other requests (including civil and criminal matters) if [Facebook] has a good faith belief that the response is required by law.”

By way of example, in Romano v. Steelcase, Inc., the plaintiff filed suit against a chair manufacturer alleging she suffered permanent injuries restricting her from leaving her home. The court allowed discovery of the plaintiff’s Facebook and Myspace accounts. Why you ask? Facebook pictures revealed the plaintiff standing happily outside of her home and were detrimental to her allegations.

In that case, the defendant contended, contrary to the plaintiff’s claims of injury, a review of the public portions of the plaintiff’s Myspace and Facebook pages revealed the plaintiff had an active lifestyle and had traveled to Florida and Pennsylvania during the time period she claimed that her injuries prohibited such activity. The court determined there was a reasonable likelihood the private portions of the plaintiff’s pages might then contain further evidence relating to her activities and enjoyment of life, all of which were material and relevant to the defense. Further, production of the plaintiff’s entries on her Facebook and Myspace accounts did not violate any right of privacy, as the plaintiff had no legitimate, reasonable expectation of privacy given the nature and purpose of such social networking sites. And any such concerns were outweighed by the defendant’s need for the information.

Not all courts are keen on allowing discovery of social media accounts. Lawyers and claims professionals should narrowly tailor discovery requests to the scope of information truly relevant to the claims and defense of the parties. Even the most liberal courts will still employ a traditional relevance analysis in assessing such discovery requests.

Juror Investigation

Lawyers are now using social media to investigate potential jurors. This should not be an optional technique. Lawyers should be using these advantages in every case in 2017 and beyond. Hundreds of jurors have been documented posting comments on Twitter with “#juryduty.” Jurors often check in on Foursquare and will even upload video footage to YouTube. If you are not vetting prospective jurors and ensuring the chosen jurors are abiding by the court’s instructions, you are already far, far behind.

In Johnson v. McCullough, Minnesota has gone so far as to impose an affirmative duty on lawyers to conduct internet background searches on potential juror litigation history if a lawyer plans to later argue juror bias related to that history. New York County Opinion 2012-2 states, “The standards of competence and diligence may require doing everything reasonably possible to learn about jurors who will sit in judgment on a case.”

Indeed, jurors’ inappropriate use of the internet, including postings on Facebook and Twitter, has led to over 20 mistrials in the past several years and an endless number of appeals and issues in the civil context. Several states, including both California and Florida, have implemented new jury instructions to advise jurors not to discuss an active case through social media.

Service of Process Via Facebook—It’s Happening!

Believe it or not, service of process is also a possibility through social media. Eight countries outside of the United States, including Canada, already permit service of process through social networking platforms. State courts in Minnesota, Texas, Utah and New York have held service of a complaint via Facebook is acceptable. Federal courts—see, e.g., Fed. Trade Commn. v PCCare247 Inc.—have likewise found social media service of process acceptable.

Most notably, on March 27, 2015, in Baidoo v. Blood-Dzraku, the New York County Supreme Court issued an opinion permitting Facebook private message service in a divorce case. In that case, despite efforts of counsel and even a private investigator, the defendant-husband could not be located and served with the complaint. Evidence indicated the husband was not employed and did not have a permanent address. The court noted the plaintiff-wife recently posted photographs that had been “liked” by the husband, thus demonstrating the Facebook account was actively used by the husband.

In the technology-based world of 2017, social media is a much more reasonable alternative than the more traditional newspaper publication option. While service of process via social media should never be your first choice, if the circumstances make it impossible to reasonably assure notice and service to the defendant, remember to consider service by social media as an option.

A Word of Caution—Ethical Rules and Considerations

Where access to a party or witness’s information is unlimited and unrestricted, there are no ethical issues in viewing the page’s contents. For instance, Oregon Bar Assn. Op. No. 2005-164 (2005) held an attorney could access publicly available social media posts because “a lawyer who reads information posted for general public consumption is simply not communicating with the represented owner of the web site. … Accessing an adversary’s Public Website is no different from reading a magazine article or purchasing a book written by that adversary.”

However, the situation becomes much trickier when social media account settings are changed and the user increases his desired privacy. Most people change the privacy settings so you must “friend” a person to see a person’s page. In some circumstances, lawyers have created false profiles to issue a “friend request” to a target. In others, lawyers have used investigators or third parties to become “friends” with the target and solicit information. Do not do this!

Of the jurisdictions that have addressed this issue, the consensus appears to be that a lawyer may not attempt to gain access to non-public social media content by using subterfuge, trickery, dishonesty, deception, pretext, false pretenses or an alias. Two key Model Rules of Professional Conduct are implicated in this situation:

  • Rule 8.4(c): A lawyer cannot “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
  • Rule 4.1(a): A lawyer shall not knowingly “make a false statement of material fact or law to a third person.”

Whether you are on the claims side conducting internet research of a claimant or party, are conducting an SIU investigation, or are counsel, if the information is not publicly viewable, do not employ methods of deceit to trick the account holder into disclosing the information. Not only do you face the possibility such improperly obtained information will be excluded at trial, you may also face a lawsuit. Such circumstances could give rise to invasion of privacy tort claims against an insurer or counsel, and could also result in bad faith allegations.

Is It Admissible?

Even when obtained, not all social media evidence is necessarily admissible at trial. Lorraine v. Markel Am. Ins. Co. lists the following factors for courts to consider in ruling whether to admit internet postings:

1. The length of time the information was posted on the site
2. Whether others report having seen it
3. Whether it remains on the website for the court to verify; whether the information is of a type ordinarily posted on that website or websites of similar entities (e.g., financial information from corporations)
4. Whether the owner of the site has elsewhere published the same information in whole or in part
5. Whether others have published the same information in whole or in part
6. Whether the information has been republished by others who identify their source as the website in question.

Likewise, Griffin v. State suggested the following methods of authenticating social media postings:

1. Ask the purported creator if he indeed created the profile and also if he added the posting in question, i.e. “[t]estimony of a witness with knowledge that the offered evidence is what it is claimed to be.”
2. Search the computer of the person who allegedly created the profile and posting and examine the computer’s internet history and hard drive to determine if that computer was used to originate the social networking profile and posting in question.
3. Obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it.

New social media platforms are created every single day. Remember to evaluate all forms of social media in both the claim phase and subsequent litigation. Whether conducting basic background research of a witness or trying to gain an edge selecting jurors in voir dire, social media information is crucial. You must also remember to update your search efforts. Posts change, and new information can be uploaded in seconds. Do not simply conduct a single, one-time social media search when a claim is created or the file arrives in your office.

Although social media can break a case wide open, do not employ methods of deceit or fraud to obtain the information. This is especially true as courts continue to more openly grant discovery requests related to social media. And, remember, the plaintiffs may also be watching you and your client.




Andrew L. Smith is a partner in the Cincinnati, Ohio, office of Smith, Rolfes & Skavdahl Company, LPA. He can be reached at asmith@smithrolfes.com.

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