Unlocking the Vault:
Best Practices for Discovery of Social Media Evidence in Litigation

Presently, over 246 million people in the United States use some form of social media.[1] That number is reported to grow to 257 million people by 2023.[2] Recent research shows that the average internet user spends 6 hours and 43 minutes online each day[3], providing plenty of opportunity to share and consume content. But what exactly are they doing?

From posting pictures to sharing status updates, liking and commenting on content from others and sending private messages, users are sharing intimate details of their private lives, opinions and viewpoints more publicly than ever before. All of this information makes social media an untapped resource that can help you develop a case, prepare for a deposition, gain insight into an opposing party and even better understand your own client. And, in some cases, social media may uncover the evidence or key fact that you have been looking for to truly bolster your case.

However, unlocking the vault of social media content requires planning, skill and specific considerations to avoid ethical risks. It’s far from conducting a simple Google search. Let’s take a look at how social media can aid your cases and how to overcome potential challenges and pitfalls.

How can social media generate your best evidence?

Consider this: The plaintiff in a personal injury matter has a hand injury and complains that he has lost the functional use of his left hand.  He describes the pain, frustration and change that this injury has caused to his life and has medical files and treating physician testimony to support these complaints.  In the past, you had the option of surveillance to attempt to “catch him” in an act that contraindicates his claim. Surveillance is risky, expensive and often fails to bear fruit.  What if, instead, an investigation of his social media profiles uncovered pictures of him out with friends or family holding a glass of beer in that faulty left hand?  What if he posted about his tennis activity or some other exercise that required him to use his left hand?  In those instances, you may have hit the home run that can allow your client to prevail, at a fraction of the time and expense of traditional surveillance.

What else can you learn from social media research?

Insight into financial issues and timing, personal struggles, drug use, fights with insurance carriers, frustrations with a company, employer, government agency or a doctor. The list is endless. As we approach the November presidential election, social media statements regarding political opinions and leanings are commonplace.  References to family members may also reveal information you wouldn’t have had the ability to obtain from other sources.

The challenge: Finding the right person and information.

A common challenge is that this very valuable social media content may be very difficult to find and access. Litigation professionals and staff are not best suited to spend their valuable time and trial preparation resources researching this type of information. Everyone uses social media differently and, therefore, searches through social media differently. If you delegate searches on Facebook to one team member and Twitter to another, you’ll likely get different results and risk losing out on key evidence and information.

Additionally, most firms do not have the correct tools to accomplish the task, again, leaving potential evidence on the table – or in this case, on the screen. First, finding the correct person on social media can take hours.  Consider the fact that there are over 100 people named Alice Jones in New York City![4]  Or the fact that there are 86 people named Alicia Gonzalez on LinkedIn in Los Angeles![5]  How do you know which profile is the one you’re looking for? In the world of social media, Alice Jones may not be her actual name. Alice Jones may have a unique “handle” such as “Big Apple Alice” or “Triathlon Winner.” Finding the right Alice takes a relentless, tenacious, experienced, diligent, resourceful and inquisitive mind.  It takes a professional with a standardized procedure and protocol who searches for individuals like Alice every day.

Once the correct profile is located, the work of capturing the information requires a careful and thorough process to remain undetected so as not to cross the lines of professional conduct or compromise the value of the data collected. Some sites leave footprints of someone searching.  A novice may think that a “friend request” may be a great way to unlock the vault of information.  However, this is a breach of professional conduct that may have serious implications on your ability to even retain the case. Caution also needs to be taken to not access protected information, such as opening comments by others on a post. A recent ABA article addressed some of the concerns and issues with collecting social media information, including a detailed list of ethical considerations.

Social media research goes beyond simply locating someone’s profile and seeing what they’ve posted. Equally valuable may be the comments made by others in response to a post and the back-and-forth conversation that ensues. Let’s go back to the example of the plaintiff who claims to have a left-hand injury. He might have posted a seemingly innocent picture of a sunset, but a friend could have commented something like, “beautiful picture, it was great playing tennis with you last week.” Expanding the search to capture these types of comments takes time and a meticulous approach.  An experienced professional knows how to cultivate a tailored search approach and has the capability to look for specific keywords and terms.

When should I conduct social media research?

Undertaking these searches early in the litigation process may create evidence that you will use at trial.  More critically, this same evidence may be lost or deleted prior to a later search.  Think back to the example of the plaintiff with the injury to his left hand.  An early search of the social media channels found the pictures of him using his left hand.  What if, after a conversation with counsel, as trial approached, the plaintiff had deleted those pictures prior to your search?  You would have had no knowledge those pictures existed.  An early search allows you to capture them.  Importantly, some channels, such as Facebook, currently allow for the collection of metadata.  Metadata is a record of when and where the data was collected and saved or a record that that critical data or picture existed.  This metadata is critical if you find information that you want to enter into the record at trial.  Professional social media investigators are trained to retain metadata from sites such as Facebook.

Beyond social media

To create a full profile, it’s important to go beyond social media.  There is a wealth of information associated with public records that may turn up valuable information associated with the party.  These records may include licensing information including business and/or recreational licenses.  Real estate transactions may be valuable knowledge for you to have.  Bankruptcy and other financial information may also be informative and could lead to other admissible evidence or the discovery of other issues that will impact your case or overall strategy.  A criminal records search may be critical.  Car registration and licensing records can be found.  Any of these records may be valuable in the preparation of your case and developing a profile of an opponent.

Equally valuable, knowing information about your client and their use of social media can help you and your client be prepared for the realities of litigation.

Unlocking the vault of social media content is no walk in the park and should be left to independent professionals for thorough and defensible results. To learn about our comprehensive social media research and analysis service, SocialDiscover™, click here or contact socialdiscover@decisionquest.com.

[1] J.Clement, May 19,2020. “Share of US population who use social media”, 2008-2019.  Statistica.com

[2] J.Clement, May 19,2020. “Share of US population who use social media”, 2008-2019.  Statistica.com

[3] Simon Kemp, January 30, 2020. “Digital 2020: Global Digital Overview”. Wearesocial.com

[4] WhitePages.com 2020

[5] LinkedIn.com 2020