While social networking sites (also referred to as social media) are one of the most talked-about areas of content growth on the Internet, many lawyers still dismiss these sites as the realm of 13-20 year-olds. They do so at their own risk.
Lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.” (The New Hampshire Bar Association Ethics Committee, Social Media Contact with Witnesses in the Course of Litigation—Advisory Opinion 2012-13/05, [June 20, 2013]).
Social networking sites were originally the domains of the 20-and-under crowd, but a December 2013 report by the Pew Internet & American Life Project found that 73 percent of adults already online also use social networking sites.
While the term “social network” was coined in the mid-1950s by sociologist J. A. Barnes to describe interactions between people in the real world, when applied to the Web, it refers to Web sites where individuals with similar personal and/or professional interests can create an online “profile” and share information about those interests so others can read about them and interact. The information these individuals share via these sites can be very useful for background and investigative research, as well as holding significant evidentiary value. Even pay databases like TLOxp have added searches of social networking information to their product offerings. You can get a head start on uncovering this information for free, though, if you know how to coax the information out of the sites.
Social media evidence is persuasive, useful, and available. For example, Santa Barbara, California, prosecutors said information a woman posted about her partying lifestyle on Myspace was the difference between a judge ordering a prison sentence rather than probation in a drunken driving crash that killed her passenger. One attorney recently told us that his wife (also an attorney) was able to locate an elusive individual and serve her based on information the individual had posted in her Facebook profile. Another attorney was able to locate a missing witness using Myspace, even though the witness did not have a profile—her young daughter did.
Participants in these online social networks tend to share personal information freely in their profiles. Often this is because they forget that their intended audience members (e.g., their online friends) are not the only people who can see it. Depending on how these users set up their accounts, their profiles might be open to a viewing audience as wide as everyone on the Internet.
A much-reported survey from the American Academy of Matrimonial Lawyers (AAML) found that 81 percent of their members cited “an increase in the use of evidence from social networking websites” between 2005 and 2010. Two thirds of those respondents indicated that “Facebook [was]the primary source of this type of evidence,” with Myspace following with 15 percent, Twitter at 5 percent, and other choices listed at 14 percent.
But family law is not the only application for this trove of information and evidence. Recently, attorneys have been able to find information in social networking profiles that has made a difference in the outcomes of other types of civil cases and criminal cases. Since 2011, e-discovery vendor X1 Discovery has reviewed “state and federal court cases with written decisions available online,” looking for cases that “involved social media evidence in some capacity.” For example, for the month of April 2014 alone, they found 112 cases (published on Westlaw) in which evidence from social media was a factor in the case. (Jon Patzakis, Evidentiary Challenges to Social Media Evidence Now Routine When Best Practices Not Utilized, May 6, 2014). This represents a significant increase over past surveys. A similar survey covering the first half of 2012 discovered 319 cases, an 85 percent increase over the same period in 2011. The 2012 survey found, “Facebook is now far in the lead with 197 cases…” (Jon Patzakis, Mid-Year Report: Legal Cases Involving Social Media Rapidly Increasing, July 23, 2012).
Beyond using information from a party’s or witness’ social networking profile as evidence, lawyers also have used information from a judge’s profile to get judges disqualified from cases (primarily based on bias). Law firm recruiters and even judges have been known to use social networking sites to sift through profiles of potential hires. (Be sure to familiarize yourself with federal and state labor laws that might affect your use of these profiles for hiring.)
In a twist on researching a party’s or witness’ social networking profile to use as evidence at trial, we were recently brought in to conduct social media background research on potential jurors in a multi-million dollar personal injury case.
Lawyers cannot ignore the evidentiary value of the information that their clients, opposing parties, potential (and seated) jurors, and others post on social media. All lawyers should be aware of the ABA’s recent changes to Comment [8] of its Model Rule of Professional Conduct 1.1 , which instructs that lawyers “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” This implies that lawyers should be familiar with social networking sites and how the information they contain could be useful in matters they are handling. This comment has already been adopted by Delaware and Pennsylvania.
Some state bar associations have gone one step further. In addition to the advice offered by the New Hampshire Bar Association’s Advisory Opinion 2012-13/05, the State Bar of California issued Proposed Formal Opinion Interim No. 11-0004, stating that, “Attorneys who handle litigation may not simply ignore the potential impact of evidentiary information existing in electronic form,” as well as citing ABA Model Rule 1.1’s Comment 8. As evidence from social media becomes even more prevalent, we expect to see other states take similar stances.
About the Authors
Carole Levitt and Mark Rosch are co-founders of Internet for Lawyers, a CLE provider focused on delivering information about free investigative and background research resources available on the Internet. Both are presenting at ABA TECHSHOW. Ms. Levitt can be reached on Twitter at @CaroleLevitt and Mr. Rosch can be reached at @MarkRosch.
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