Bar News - July 19, 2017
New Lawyer Column: Social Media and the New Age of Litigation Preparation
By: Jenna Bergeron
Truth, lies, and Internet spies – that is what litigation preparation has come to in the age of social media and social networking. One recent case our firm handled highlighted the importance of social media searches in litigation.
Our client, in a post-divorce child support modification matter, believed the obligor was shielding cash income from inclusion in child support. His Twitter account promoting his side business as a DJ proved it – his public tweets indicated where and when he was working and “making that paper.” If we had not searched social media, we may never have found this crucial information, and the obligor would have continued to believe that “she don’t know [he’s] on that DJ flow.”
Social media is vastly changing litigation preparation, and the utility of social media investigation cannot be overstated. Lawyers today are using social media for a wide array of purposes from tracking down individuals for service of process to investigating potential jurors, witnesses, opposing counsel and parties. In Wisconsin, attorneys learned through jury voir dire that a potential juror was a blogger. In searching his blog, they found his Twitter account, including tweets such as: “Still sitting for jury duty crap. Hating it immensely. Plz don’t pick me. Plz don’t pick me.” If your potential juror has no interest in being there, you may want to know that.
Searching social media sites for information has become not only prudent, but expected. In 2012, the NH Bar Association Ethics Committee issued Advisory Opinion 2012-13/05, “Social Media Contact with Witnesses in the Course of Litigation.” While the primary focus of the Opinion is what measures a lawyer may take to investigate a witness through social media accounts, the Opinion solidifies the expectation that attorneys be aware of the potential uses of social media and remain competent as to their uses for purposes of litigation. The Opinion notes that attorneys’ duties, under the NH Rules of Professional Conduct, to provide competent and diligent representation include gathering sufficient facts about a client’s case from relevant sources, taking steps to ensure proper preparation, and acquiring the skills and knowledge needed to represent the client competently.
The Opinion also states that “counsel has 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.”
So, we know it’s important, but what do we do and how do we do it? First, be aware of the commonly used sites, what you can glean from searching each, and tips for effective and ethical searching. The following are the major social media sites which may be of use:
- Facebook: Facebook is a social networking site that allows users to create profiles, post comments, privately chat, share photographs and links, play games, and stream live video. Content may be made publicly accessible or shared with only a select group of the user’s “friends”. Public profiles typically allow viewing a user’s friends list, photographs, posts, pages they may “like” (i.e., have an interest in), and individuals with whom they have publicly communicated. You may view who is “liking” someone’s publicly shared content, and at times, can learn the person’s telephone number, other contact information, or location at a specific date and/or time if the person has used the “check in” feature. If a profile is limited, all hope is not lost. With a public friends list, you can search through public posts of the user’s family members or friends or run a name into the Facebook search bar and review the “posts” and “photos” subtabs to find publicly available information about a private user.
- Twitter: Twitter is a social networking service that allows users to post and interact with messages known as “tweets”. You can utilize Twitter’s search feature to find people or information. If a person has a private account, you can utilize subtabs such as “top” or “latest” to find publicly available tweets or posts about the private user.
- Instagram: Instagram is a social networking app which allows users to share photos and videos. Searches of public accounts can result in finding this content.
- LinkedIn: LinkedIn is a business and employment-oriented social networking service. You can view LinkedIn profiles to learn of a person’s professional information such as location, education, and employment history.
- Pinterest: Pinterest is a social network that allows users to share and search for images of interest and “pin” them to collections known as pinboards. Searching a user’s Pinterest account can be useful in determining his or her interests.
You can also utilize advanced search features in your web browser. For example, you can put a person’s name in quotes and list the website you would like to search in Google, such as: “John Smith” site: Facebook.com. This will limit your Google search to profiles and posts about “John Smith” on Facebook.
Social media as a litigation tool, while useful, is not limitless. NHBA Ethics Committee Advisory Opinion 2012-13/05 notes that although viewing an unrestricted Facebook or Twitter account is permissible, if a lawyer asks the witness’s permission to access restricted social media information, the request must not only correctly identify the lawyer, but also inform the witness of the lawyer’s involvement in the disputed or litigated matter.
The ABA Standing Committee on Ethics and Professional Responsibility’s Formal Opinion 466 (2014) indicates that lawyers may research jurors via social media, but may not communicate directly with jurors. If you are unsure of the ethical bounds of your social media investigation, you should review these opinions as well as the ethics tips posted by the ABA. In this new age of litigation truth, lies, and internet spies, there is no room for surprise.
Jenna M. Bergeron is an associate at Brennan Lenehan in Manchester, NH. She is vice chair of the NH Bar Association New Lawyers Committee and presently serves as the American Bar Association Young Lawyers Division District Representative for District 3, representing Massachusetts and New Hampshire.