Social media has forever altered the way we communicate and engage with our friends, family, and our society at large. It has also transformed the legal industry, especially the discovery and negotiation process. Social media discovery is now standard practice in personal injury cases. With the amount of material that subscribers post every day, social media profiles are like a digital window into a person’s life. Attorneys, claims representatives, and other vested parties can utilize these online profiles to get an inside view of a person’s life as well as look for potential hurdles in their case. With a little creativity, personal injury attorneys can increase the effectiveness of their social media evidence and improve the overall strategy of their case.
Accessing the Social Media Accounts
First thing’s first: looking up a person’s social media profile. The attorney or legal researcher may luck out and find that the account has publicly-posted text, images, or other material. But, they also might discover that the account activity is private. What do you do? Social media sites typically will not disclose user history, even if the attorney attempts to subpoena the information. A more effective option is to ask opposing counsel to provide social media information through discovery – whether this is through interrogatories, depositions, or other discovery methods. Through formal discovery, attorneys can request social media sites used, account names/IDs, any aliases, posts, comments, images, videos, and blogs. Attorneys can also utilize employment records, medical records, and other public records to search for social media data. (Tip: also try searching the party’s email address to find links to social media accounts).
Broaden Your Social Media Scope
Digital communication and social media are continuously and rapidly evolving. This means that there’s a wealth of opportunities for uncovering social media evidence. There are currently hundreds of active social media sites (and probably even more since the publication of this blog). While Facebook is a familiar favorite, it should not be your only potential source of information. Don’t forget about other popular sites such as Instagram, Twitter, Tumbler, LinkedIn, WhatsApp, Tik Tok, Pinterest, Reddit, and Nextdoor. You can also think outside of the box and look for evidence on sites such as YouTube, gaming websites, and even online dating apps and websites. What may seem like an innocuous source could provide information that’s pivotal to your case.
Don’t Forget About Secondary Sources and Potential Witnesses
Let’s say that you’ve hit a roadblock or have mined all the data from a person’s social media accounts. Now, it’s time to take a step back and look at their friends, family, and other acquaintances. To begin, there’s a good chance that someone in their household has a social media presence, whether that is a family member, a loved one, or a roommate. You can conduct a quick search on sites such as whitepages.com or spokeo.com to identify the other people in the household and then conduct a search for their social accounts. You can also search through friends’ social media profiles. There is a good chance that the primary party is featured in their friends’ or family’s photos or videos, or has commented on their posts. This can reveal more information about the primary party or even help a personal injury attorney to identify potential witnesses (as well as get a sense of any potential witness bias or credibility issues).
Another approach is to see what pages or organizations the primary party likes, comments on, or has “checked into” as it relates to events or locations. These digital footprints can give you an idea of the party’s recent behavior. You can also look at the “liked” pages or organizations to see if there is any secondary material about the party that you otherwise would have missed. For example, a party may “like” or “checked in with” a local community group, and that organization may have posted recent photos or information related to that individual. If that local group did not tag the party, you might not have otherwise found the relevant information.
Be Sure to Authenticate the Material!
Once you have collected your social media evidence, be sure to authenticate it. You don’t want to spend hours and hours pouring through a person’s online presence, only to have the court throw out the evidence because of a lack of proper identification. (For more on this topic, please refer to the Rules of Evidence). With so many people having private social media accounts or having an alias as a user name, it is easy for the account holder to argue “no, that isn’t my account” or “that’s a post/image from before the incident.” While there are many different ways to authenticate social media material, one common method is to have a forensic computer expert review the content. He or she can use metadata or a person’s IP address to connect certain posts to a particular person, location, or time frame.
Consider the Bigger Litigation Picture
While social media is an excellent tool in the investigative or case-building process, it can also help shape your overall litigation strategy. Social media information may reveal details requiring further research or analysis. It can offer perspective about the strength or weakness of a case, or provide leverage in the negotiation and settlement process.
Social media, no matter when it is gathered and for what purpose, is only useful to a personal injury attorney if it is deployed effectively. So, before you attempt to admit your social media findings into evidence, consider your overall strategy in light of the unique facts of the case.
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