SMI Aware experts are frequently asked about the defensibility of social media evidence in court and whether it is lawful to obtain this type of content. According to the ABA Model Rules of Professional Conduct, attorneys are expected to utilize technology, including social media, in order to provide competent and diligent representation to a client. Researching the online public presence of potential parties, witnesses, even your own client should be standard practice when preparing a complaint or conducting due diligence in anticipation of litigation. In fact, if the initial search revealed extensive social media content, using SMI Aware monitoring services is ideal to regularly collect potential new evidence, as well as update the search for major case activities (mediations, depositions, trial, etc.).
When it comes to the admissibility of social media evidence, the key is to make sure that you are accessing the information in a permissible manner. Generally, a lawyer investigating a case may access the public portions of an individual’s social media account and try to identify whether any of their social media profiles may contain evidence relevant to the case. One must also consider the applicable ethics rules for conducting pre-litigation investigations – specifically, it is inappropriate and unethical to bypass privacy settings or “friend” someone in an effort to gain access to private or non-public portions of the subject’s account. Moreover, this type of conduct can eliminate the admissibility of social media evidence in court.
It is imperative for legal teams to conduct ethical and compliant social media evidence collection and partnering with SMI Aware ensures the admissibility of social media evidence in court. SMI Aware’s team of certified analysts utilize our proprietary technology to search social media, search engines, and the deep web. Our in-house analysts locate, capture, and preserve the social media evidence that evades most investigators while complying with the highest standard of ethics and ensuring defensibility in court.