We live in an age where a person’s online presence says volumes about who they are and how they conduct their daily lives. In this way, it can be better than traditional surveillance. While surveillance by an investigator can catch a claimant off guard, juries tend not to like the idea of someone crouching in the bushes or sitting in a car photographing another person. Social media, on the other hand, has the benefit of coming from the claimant himself. Thus, the “creepy” factor is eliminated.
We’ve all heard and read numerous articles and presentations on social media in litigation. Why add one more with this month’s column? Because a vast majority of claims professionals are not effectively using this potential gold mine. When evidentiary issues are not considered at the outset, the information can be useless. It is important to involve counsel at the beginning of any social media investigation. A simple social media background check often falls short of obtaining evidence in a way that makes it useful when it matters the most—at trial. In addition, flat-fee services that conduct a blanket search often do so without an appreciation for how the information relates to the claim and defense in litigation.
Ethical Considerations
The number one pitfall to avoid is initiating contact with a represented opposing party. The issue of what constitutes “contact” is a matter of debate. ABA Model Rule 4.2 prohibits a lawyer from “communicating with a person the lawyer knows to be represented by another lawyer in the matter.” It is generally opined by various bar associations that friending or otherwise connecting with a represented party is impermissible. But what about a non-lawyer claims professional? Can they make contact? If the information is to be used by counsel at trial, the same rules likely apply. It is clearly impermissible to use pretexting or create a fictitious profile to make contact with a party. Although different jurisdictions have varying ethical parameters, the safest general rule is to only identify information that is publicly available on a person’s profile or Web page.
Practical Pointer: Before conducting a social media search, log off of all accounts. Some platforms allow users to identify who has viewed their profile. Logging off before a search prevents this.
Admissibility
Information must be obtained in a way that will ultimately allow it to be admitted at trial. Article X of the Federal Rules of Evidence deals with the admission of writings, recordings, or photographs. Fed. R. Evid. No. 1001(1) defines “writings” and “recordings” as “letters, words, or numbers, or their equivalent set down by…photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.” In this regard, the admissibility of social media content is no different than traditional evidence, such as diaries, photographs, or other documents. The evidence must first be authenticated to be admitted. Like all other evidence, it also must be relevant and material and must not constitute hearsay in order to be admitted.
Practical Pointer: Know what fact you are trying to prove and articulate how the social media evidence will prove that fact.
Authentication
Most background search services fall short on knowing what to do with information when it is obtained. In order for the information to be admitted at trial before a jury, it must be both authentic and relevant. Relevancy is usually not an issue. Authentication, on the other hand, can be a very nuanced and complicated matter. Rules and requirements of authentication can vary among jurisdictions and often fall within the discretion of the judge. While the easiest way to authenticate evidence is via stipulation, this is not always available. Federal Rule of Evidence 901 requires evidence that the item is what it is claimed to be. While the threshold for authentication is low, it should be considered at the time the information is obtained. If you wait until trial to decide how to authenticate the evidence, it may be too late.
Under Rule 901, the most practical opportunities for authentication are from the testimony of a witness with knowledge or from distinctive characteristics in the evidence. The courts have determined that the following are sufficient for the authentication of social media:
1 The statement of a party to an instant message that conversations were his own
2 A witness who has read messages or posts that knows the subject individual
3 Distinctive characteristics in a photograph that identify the individual
4 A username consistent with a common nickname of an individual
5 Testimony about the process of downloading and preserving evidence from the person doing so.
Courts have routinely excluded social media evidence simply because it was found online and downloaded; therefore, you need to have a plan for authentication from the outset.
Practical Pointer: Obtain an affidavit from the person viewing the social media evidence stating what they viewed, the time and date, and how the information was preserved. The affidavit should thoroughly document the process by which the evidence was obtained and stored. It should also be from someone with personal knowledge who is available to the court for questioning.
Expectation of Privacy
Objections are sometimes raised based on an individual’s expectation that their personal information should remain private. However, in social networking, an individual generally waives this expectation when they post information that is publicly accessible. Courts and bar associations have varied on this issue. Some have held that a person has a lowered expectation of privacy when the person asserting the right made the information available in the first place. However, other courts have declined to go so far as to allow a party access to an opponent’s private profile or page via formal discovery.
Practical Pointer: Consult with counsel on the state and local rules before conducting a social media search. The rules in states vary, and one misstep could eliminate otherwise valuable social media evidence at trial.
Use of Counsel in Obtaining Evidence
As a practical matter, it is common sense to engage counsel in obtaining social media evidence at the outset. You may find a gold mine, but if it is not obtained and preserved in a manner consistent with the ethical and evidentiary requirements of the jurisdiction, it is useless. Because those requirements vary, a one-size-fits-all social medial background check is usually ineffective. Take time to get the right evidence the right way. It can make or break your case at trial.