It is amazing the amount and type of personal information people willingly disclose to the public via social media websites like Facebook and Twitter. Most litigators shouldn't worry about whether the information is out there - it is. Likewise, it is hard to imagine a scenario in which social media information is not an avenue that the litigator should explore. The first question should be how to efficiently capture as much of the information as possible and then incorporate it into the litigation strategy.
Before getting into capturing the information, one should determine where to find the information; i.e., does the person have a Facebook / Twitter / LinkedIn account? The two ways to answer this question: assuming the person is a party to the litigation, you can send an interrogatory asking for the information. However, if you would like the answer faster than 30 days (or 60+ days with an uncooperative opposing counsel), it's probably best to find the answer yourself.
Facebook and LinkedIn provide very powerful search functions. Twitter is somewhat more difficult. In any event, once you find the person, what's the best way to capture the information? Most people probably follow the "print screen" method - they find a post of interest, hit "print screen" on the keyboard, and then move onto the next post. There are a couple issues with this approach, but we'll save that for another post.
I recommend gathering the social media information prior to a deposition of the subject. This allows you to have a better idea of who the person is, but also gives you the ability to ask questions about the posts during a deposition. Some litigators would prefer to save the information and use it during a cross-examination at trial. In other words, not letting opposing counsel know you have the information.* This is completely up to the individual and should be addressed on a case-by-case basis.
Regardless of when you use the information, prior to any questions about social media, I recommend taking away the "my account was hacked" defense. I suggest doing this at the beginning of a deposition, right after the standard demographic questions (name, address, date of birth, etc.). Here are some suggested lines of questioning to get you started:
When it comes time to ask about the social media posts, head-off any hearsay and other admissibility concerns by first asking if the witness made the post and whether he has any reason to question the accuracy of the post. Then proceed with substantive questions regarding the post.
* - Of course, if opposing counsel has requested such information through standard discovery methods, you don't have much choice in the matter
Before getting into capturing the information, one should determine where to find the information; i.e., does the person have a Facebook / Twitter / LinkedIn account? The two ways to answer this question: assuming the person is a party to the litigation, you can send an interrogatory asking for the information. However, if you would like the answer faster than 30 days (or 60+ days with an uncooperative opposing counsel), it's probably best to find the answer yourself.
Facebook and LinkedIn provide very powerful search functions. Twitter is somewhat more difficult. In any event, once you find the person, what's the best way to capture the information? Most people probably follow the "print screen" method - they find a post of interest, hit "print screen" on the keyboard, and then move onto the next post. There are a couple issues with this approach, but we'll save that for another post.
I recommend gathering the social media information prior to a deposition of the subject. This allows you to have a better idea of who the person is, but also gives you the ability to ask questions about the posts during a deposition. Some litigators would prefer to save the information and use it during a cross-examination at trial. In other words, not letting opposing counsel know you have the information.* This is completely up to the individual and should be addressed on a case-by-case basis.
Regardless of when you use the information, prior to any questions about social media, I recommend taking away the "my account was hacked" defense. I suggest doing this at the beginning of a deposition, right after the standard demographic questions (name, address, date of birth, etc.). Here are some suggested lines of questioning to get you started:
- Do you have a Facebook / Twitter / LinkedIn, etc. account?
- Has the account ever been hacked?
- If so, when, how long was it out of your control, when did you get control back, etc.
- Have you made any posts, sent any messages, etc. regarding this lawsuit?
When it comes time to ask about the social media posts, head-off any hearsay and other admissibility concerns by first asking if the witness made the post and whether he has any reason to question the accuracy of the post. Then proceed with substantive questions regarding the post.
* - Of course, if opposing counsel has requested such information through standard discovery methods, you don't have much choice in the matter
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