Discovering, Authenticating & Utilizing Social Media in Litigation: Strategy Considerations

By Donald L. Carmelite, Esq. and Allison M. Domday, Esq.*

Social media is all around us. Learning about social media and incorporating it into your litigation strategy is imperative, whether we like it or not. This article discusses uncovering, authenticating and utilizing social media in litigation.

Unearthing a litigant’s social media is often a daunting task. Occasionally, luck plays a role in successful, modern surveillance. However, more frequently, careful preparation leads to better results. Before beginning your online search, gather as much information as you can about the litigant: full legal name, nicknames, addresses, email addresses, date of birth and family members’ names. Good sources for this information include the Complaint, White Pages, medical records, new patient/intake forms and the AOPC webpage/criminal docket. Use this information to search for the litigant’s social media accounts directly on Google or Facebook. If you do not find anything useful, consider using a “deep web” search engine like www.pipl.com. Also, several third-party vendors perform this type of “social media search” for a fee. However, experience has taught us that, even if you retain a third-party vendor, there is no substitute for searching by yourself.

Timing is everything—search early and search often. Consider performing social media searches as soon as you open a new file, and again at weekly or monthly intervals, depending on the volume of a litigant’s posts. Print a copy (in color if possible) or save an electronic copy of the litigant’s social media page. You will need to use your Snapshot feature later. Do not count on the social media page to be present online the night before your trial or deposition. Litigants who once had public pages tend to change their privacy settings over the course of litigation, likely at the request of their counsel.

Also, use traditional discovery channels to unearth a litigant’s social media. Be ready to encounter your opponent’s objection based on relevancy. “Good faith basis” objections seem to be common given the current state of the law on social media discovery—there are no appellate decisions in the Commonwealth. Trial courts compel production of social media if the moving party shows that there is likely to be discoverable information on the private portion of the account based on the information gathered from the publicly-available information. You can expect a denial of your motion to compel if you have not met this burden. Old-fashioned detective work, described above, proves vital at this stage.

As with any litigation strategy, your approach in collecting and utilizing the information requires forethought. Consider asking a deponent about their social media habits to test their truthfulness and/or extent of social media “use.” Depending on what you learn, you may be able to support a better “argument” for what constitutes a “good faith basis.” Other approaches may better serve your future trial strategy. For example, obtaining the litigant’s denial about being able to perform the activities you viewed them “doing” on their public social media page will bolster your cross examination at trial.

There are at least two ethical considerations. The first—consistent with Pennsylvania Rule of Professional Conduct 8.4—is what an attorney cannot do, or what you cannot ask your assistant or paralegal to do, with regard to locating a litigant’s social media account. A second ethical concern arises when producing the information uncovered. We take the position that is consistent with Pennsylvania appellate case law on traditional surveillance, which is that social media evidence is not discoverable until the plaintiff has been deposed. However, there may be instances where strategy dictates production at varying stages. Social media evidence can be used to bring a case to a resolution. Consider sharing damning information with your opponent in an effort to quickly settle a case. Under other circumstances, consider utilizing simple social media evidence to undermine your opponent’s credibility. When properly structured, these “minor” credibility injuries build up and can win the jury’s opinion in your client’s favor.

When utilizing social media at trial, you will likely encounter an objection based on authenticity. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Pa. R. E. 901(a). A cooperating “owner” of the social media account may satisfy this requirement by testifying that the username/account is his and that he authored the post, or knows who took the photograph (or is shown in the photograph). If you do not anticipate cooperation, consider making an offer of proof concerning the account’s distinctive characteristics and other contextual clues. Pa. R. E. 901(b)(1) and (4). For example, if a litigant discusses a topic about which only he possesses knowledge within the purported social media evidence, that corroborating evidence can be used to show the authenticity of the evidence. Pa. R. E. 901-902. Consider retaining an expert to testify about the electronic properties (metadata – data about data) of a post or photograph. Although a photograph’s individual metadata is stripped upon posting to Facebook, an appropriate expert will be able to testify about the webpage’s or post’s metadata.

Final impediments arise out of the bench/bar’s unfamiliarity and lack of appellate case law on the topic, the potential unreliability of information found and the sheer expense associated with its collection. Despite these barriers, if you can find just one pertinent photograph or post and properly introduce it into evidence, you may be able to alter the trajectory of the case in your client’s favor.

*Don and Allison work in our Harrisburg, Pennsylvania office. Don is a shareholder and can be reached at 717.651.3504 or dlcarmelite@mdwcg.com. Allison is an associate who can be reached at 717.651.3538 or amdomday@mdwcg.com.

Defense Digest, Vol. 20, No. 1, March 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.