By: Daniel P. Costello, Esq. & Jessica Biagi, Esq.
Why use social media websites to investigate claims? You would not believe what people are putting on the internet these days! A recently widowed husband claiming loss of consortium posts a picture of himself at a beach with barely dressed women wrapped around his waist. A claimant who broke his ankle tweets that he has fully recovered and cannot wait to run another marathon. A plaintiff's witness posts the day after the alleged incident that she is severely hungover and does not remember much about what happened the night before.
Social media can provide invaluable information when evaluating a claim, preparing a defense, or preparing for trial. For example, defense counsel can use a Facebook photograph or Twitter post you found on a social media website to rebut a claim for damages or impeach a plaintiff's credibility at trial. Nevertheless, in using social media to investigate claims, you need to be careful to avoid crossing the line and putting your defense counsel in an awkward ethical position.
How to keep things ethical
If the information is public, it is fair game. However, if a person's profile is set to private, certain ethical problems can arise. Attorneys are not allowed to use deceptive investigatory tactics or engage in prohibited communications, whether through their acts or the acts of another. This means that if you create a false profile or friend a represented claimant, the attorney can get in trouble and the information itself can be thrown out. While several jurisdictions allow attorneys to friend unrepresented individuals under certain circumstances, the safe bet is to alert defense counsel to the profile and allow them to make a formal discovery request.
How to make it count
Once you find the “smoking gun,” what do you do with it? To make it count, you need to properly collect the social media-based evidence so that defense counsel can circumstantially lay the foundation at trial. Make sure to preserve enough information about the website to establish that it belongs to the subject claimant/witness. Record the site's URL, how you found it, the date and time you viewed it, and any other identifying details (ie, username, stated location, communications with other witnesses). Using the “snipping tool” on your computer, take various snapshots of both the post and the profile in general. A judge will consider all the particular details in combination.
How to avoid surprises on this end
What goes around, comes around. Make sure to look up your clients and alert defense counsel to any potential issues with their social media websites. If no formal discovery request has been made in the case, it may be permissible to remove the adverse content.
