Public Domain – Discovery of Social Media Evidence in Legal Proceedings

Social media profiles contain vast amounts of voluntarily posted information while also being readily accessible and relatively permanent. The prevalence and popularity of social media sites make them a natural target for legal discovery. However, many legal and ethical issues are associated with social media collection and e-discovery. Attorneys are advised to be well versed with those issues.

Privacy and Ethics Regarding Social Media Evidence and Discovery

Many people post freely and regularly about their professional and personal lives through social media posts. These posts frequently include photos, videos, and detailed written and verbal accounts that are often posted in real-time. This liberal sharing on social media has rendered much information traditionally considered private into part of the public realm.

the semi-public nature of social media does not automatically entitle attorneys or their agents to unfettered access to opposing litigants’ social media profiles

However, the semi-public nature of social media does not automatically entitle attorneys or their agents to unfettered access to opposing litigants’ social media profiles. ABA Model 4.2 explicitly prohibits attorneys and their agents from making “friend” or “connection” requests to a party who counsel represents through that party’s social media networks. Further, attorneys should avoid initiating communications with parties represented by counsel through social media as a means of gaining access to their profile information. Instead, social media collection should be executed through discovery requests directed to the party’s attorney.

ABA Model Rule 8.4 states that it is an ethical violation for attorneys to use deceptive tactics to access an opposing party’s private social media account information. Requests to review private social media profiles as part of an online discovery process are permissible. Attorneys should determine whether a jurisdiction requires the disclosure of the purpose for the request for private account information as such requirements vary significantly from one jurisdiction to another.

Preservation of Social Media Evidence

The ABA Model Rules also prohibit plaintiffs or attorneys from deleting or obstructing access to social media data subject to litigation holds. Specifically, ABA Model Rule 3.4 states that a “lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.” This preservation requirement pertains to social media posts and metadata and digital identification, which can be used for authentication to establish authorship or timestamps for social media content. Likewise, attorneys are required to advise their clients that social media data that is subject to discovery must not be compromised or destroyed.

SMI Aware ensures that our clients’ discovery requests comply with the ABA Model Rules. We ensure the preservation of relevant social media data to ensure access to our clients’ pertinent and legitimate discovery requests.

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