Trial Preparation – Social Media

As president of the State Bar of Georgia, I often have occasion to speak at events that extend beyond my own personal injury, wrongful death and commercial trucking law practice. The following is excerpted from my presentation — “Trial Preparation: 30 tips in 30 Minutes” – at the Georgia Law of Torts seminar at Mercer University Law School in Macon on September 23, 2011.

———–

5 . Social Media.

Social media can be “self surveillance” that hands a loaded gun to the other side in litigation. Discuss with a potential client whether she might consider taking down any Facebook, MySpace, YouTube or other social media sites prior to engaging you for the case. Alternatively, the client should be warned to expect the other side to find and use anything that is online, so maximum caution should be exercised. For example, Facebook users should be extremely careful about selecting friend requests only from people who are close friends offline, disable “public search,” remove all activities and interests from the profile, set the maximum possible privacy settings, take down or “untag” any photos other than a single head shot, and avoid any discussion of the case or injury in any social media posting and emails (except confidential attorney-client communication).

At the same time, immediately do a Google search on the opposing parties and download and print color hard copies of whatever may be found. However, do not use subterfuge to “friend” anyone in order to gain access to information, as that would violate Rule of Professional Conduct 8.4(c) which provides that a lawyer shall “not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” See, e.g., Professional Guidance Committee of the Philadelphia Bar Association [Opinion 2009-02].

The Stored Communications Act, 18 U.S.C. §§ 2701-11, includes criminal and civil sanctions for unauthorized access to stored communications, and has been applied in cases involving access to social media.  See, e.g., Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J.)(employer access to employee’s social media tortious invasion of privacy and violations of the SCA); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 880 (9th Cir. 2002)( unauthorized access to his private online bulletin postings under false pretenses).

Whether or not social media postings are removed or placed behind privacy screens, they will likely still reside in the corporation’s computers and may be discoverable. There is a growing body of law on discoverability of social media postings in relation to the Stored Communications Act, 18 U.S.C.A. § 2702(a)(1), (2). See, e.g., Thomas I. Barnett and Kenneth R. Shear, 1 Internet Law and Practice § 10:12, The social media networks: Issues in communications disclosure and preservation (2011); Evan E. North, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1279-1309 (2010); McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. C.P. 2010)(postings discoverable despite privacy settings; Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. 2009)(approved subpoena seeking plaintiff’s social media postings);  Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650 (Sup 2010)(social media postings discoverable). Contra, Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010)(held that under Stored Communications Act, social media communications could not be subpoenaed for use in civil lawsuits).