The Evolving Affirmative Duty to Investigate Social Media Evidence ...

USLAW www.uslaw.org FALL/WINTER 2012Karen Painter Randall and Steven A. KrollConnell Foley LLPThe Evolving Affirmative Dutyto Investigate Social MediaEvidence and Its Impacton the Standardof CareSocial media websites such asFacebook, MySpace, and Twitter are the21st century’s preferred method of interactingand communicating with peoplearound the world. As of February 2012,Facebook had over 500 million users, andof those 500 million, 50% of activeFacebook users logon every day. Further, anotherstudy found that there are approximately140 million “Tweets” per day, or 750“Tweets” per second. This phenomenon haslead to courtrooms across the country facingnovel issues on the use of social mediawebsites in litigation. As a result, the scopeof an attorney’s duty to not only adviseclients of the ramifications of maintainingsocial media websites, but also the duty touse it to obtain information about an adversary,has created a new challenge in competentlyrepresenting clients.A common theme found throughoutrecent decisions on the use of social mediawebsites is that based upon many jurisdictionsliberal discovery rules informationposted on social media websites may be discoverableand used in the prosecution or defenseof a case. A federal court in Coloradoheld that the content of social networkingsites in the public areas, which contradictedthe allegations as to the effect of the injurieson the plaintiffs’ daily lives, wasdiscoverable. 1 A New York trial court foundthat access to information contained on theplaintiff’s current and historical Facebookand MySpace pages and accounts to be bothmaterial and necessary. 2 Further, a Floridafederal court ordered a plaintiff to produceall photographs added to any social networkingsite since the date of the subject accidentthat depicted plaintiff, regardless of whoposted the photographs. 3 A recent study revealedthat between January 1, 2010, andNovember 1, 2011, there were 674 reportedstate and federal court cases that involved socialmedia evidence in some capacity. Thus,social media websites have replaced the useof surveillance and has become a less expensiveand more useful source of informationfor attorneys seeking to find the “smokinggun” piece of evidence.As new forms of social media websitescontinue to evolve and advance, so too mustthe profession of law to keep pace with theduty owed to clients. In fact, a Marylandcourt recently commented that “[i]t shouldnow be a matter of professional competencefor attorneys to take the time to investigatesocial networking sites.” 4 Thus, thequestion becomes what duty does a lawyerowe to his own client to warn about the messagesor photographs he posts to his socialmedia website? Conversely, what duty doesa lawyer owe to a client to obtain all relevantand material information about an adversary’spostings and photographs to a socialmedia websites? While there is a dearth ofcase law on the subject, the sentiment appearsto be that a lawyer who chooses to ignoresocial media does so at his own peril.With regard to his own client, at thetime of being retained, an attorney has aduty to explain to the client the effect hissocial media website can have on the case.Such a discussion is akin to warning a clientthat a former conviction may come to lightduring the course of discovery. However,this is not to say that an attorney should instructclients to delete potentially damaging

USLAW www.uslaw.org FALL/WINTER 2012content from their social media websites.This notion was clearly exemplified in Lesterv. Allied Concrete Company, 2011 Va. Cir.LEXIS 132 (Va Cir. Ct. 2011) where a plaintiff’sattorney instructed his client to removedamaging evidence from his Facebookpage, which showed the plaintiff as anythingbut grieving, resulting in a severe courtsanction of over $700,000. In addition, inQualcomm, Inc. v. Broadcom Corp., 2008 U.S.Dist. LEXIS 91 (S.D. Cal. Jan. 7, 2008), aCourt ordered Qualcomm to pay$8,568,633 for failure to produce tens ofthousands of documents requested in discovery.The Court also sanctioned six attorneysfrom an outside law firm for blindlyaccepting Qualcomm’s claim that their e-discovery searches were adequate, as well asintentionally hiding or recklessly ignoringrelevant documents. Nevertheless, an attorneyhas a duty to warn a client that as the litigationproceeds, even non-public postings,or postings to their social media website bya third party may be discoverable.The other main duty of an attorneyarises out of the investigation of an adverseparty through social media websites. For example,a defense attorney would not be actingcompetently and diligently in a personalinjury case, if the attorney ignored picturesof a recent trip to Hawaii posted by a blissfullylooking plaintiff who is claiming loss ofenjoyment of life. However, an attorneydoes not have carte blanche to send “friendrequests” to every opposing party he has anactive file with. First, most jurisdictions havea rule prohibiting a lawyer from contactinga represented party without the party’scounsel’s consent. Second, Courts will notpermit a “fishing expedition” into a person’sprivate social media website without areasonable basis. There still must be a “factualpredicate with respect to the relevancyof the evidence”, as described by one NewYork appellate court in McCann v.Harleysville Insurance Co. of New York, 78A.D.3d 1524, 910 N.Y.S.2d 614 (N.Y. App.Div. 4th Dept. 2010). Third, most on-line socialmedia is controlled by a non-party serviceprovider. The Stored CommunicationAct, 18 U.S.C. § 2701 et seq., prohibits electroniccommunication services from revealinga user’s private messages even if theyreceive a subpoena. Further, the extent ofthe privacy protection afforded by theStored Communication Act may dependupon the user’s conduct, i.e., their privacysettings. Therefore, an attorney is requiredto obtain written authorization from an adverseparty for a non-party to reclaim datafrom a private social media website. Despitethese hurdles, an attorney has a duty tocheck all public social media websites forany relevant information. Moreover, attorneysshould begin to craft and formulatenew interrogatories, requests for documents,and deposition questions that canhelp form a basis for gaining access to potentiallymaterial information and photographscontained in an adversary’s privatesocial media website. Similar to obtainingwritten authorizations for receipt of a plaintiff’spertinent medical records, attorneysshould also consider requesting written authorizationsfor a plaintiff’s non-public socialmedia websites when deemedappropriate.Another area of the law where socialmedia has played a large role is in an attorney’sdue diligence in serving legal papersupon an adverse party. Courts have recognizeda duty of attorneys to perform basicinternet searches to find the whereabouts ofa party. One Indiana appellate court wasamazed that the plaintiff’s attorney hadfailed to Google an absent defendant as amatter of due diligence, noting that theCourt itself had done so and immediatelyobtained search results that included a differentaddress for defendant as well as anobituary for the defendant’s mother listingnumerous relatives who might have knownhis whereabouts. 5 A Florida appellate courtquestioned the effectiveness of an attorneywho had only checked directory assistancein order to get an address to serve a defendant,calling such a method in the age ofthe Internet the equivalent of “the horseand buggy and the eight track stereo.” 6Moreover, in Louisiana the appellate courtupheld a trial judge’s rejection of a party’sdue diligence claims where that judge hadconducted his own Internet search and concludedthat the proper contact informationfor the defendant was “reasonably ascertainable.”7 Therefore, an attorney’s duty to diligentlyobtain the location of a party forservice purposes has been heightened bythe availability of social media.In a profession based upon traditionand legal precedent, it is apparent that attorneyscannot ignore the technologicalchanges going on around them. Rule 1.1 ofthe ABA Model Rules requires lawyers to becompetent in the representation of theirclients. Further, Comment 6 the aforementionedRule advises that lawyers “shouldkeep abreast of changes in the law and itspractice.” Thus, early on in their representationattorneys should discuss the ramificationsof a client’s social media on the matter.In addition, an attorney should perform asearch, using a search engine such asGoogle, for any relevant, public informationavailable not only for his client, but any partiesor witnesses to the action. Lastly, anattorney should create a discovery plan thatincludes interrogatories and document requeststhat take into consideration potentiallyrelevant information contained in asocial media website. While a body of caselaw continues to develop as to the duty withregard to social media, the biggest takeawayfor attorneys is that they must be cognizantof these websites and their potential use forbetter or worse in litigation.1Ledbetter v. Wal-Mart Stores, Inc., 2009 U.S. Dist.LEXIS 126859 (D. Colo. 2009)2Romano v. Steelcase, Inc., 30 Misc. 3d. 426, 907N.Y.S.2d 650 (N.Y. Sup. Ct. 2010)3Davenport v. State Farm Mutual AutomobileInsurance Company, 2012 U.S. Dist. LEXIS 20944(M.D. Fla. 2012)4Griffin v. Maryland, 995 A.2d 791 (Md. Ct. Spec.App. 2010)5Munster v. Groce, 829 N.E.2d 52 (Ind. Ct. App.2005)6Dubois v. Butler, 901 So. 2d 1029, (Fla. Dist. Ct.App. 2005)7Weatherly v. Optimum Asset Management, 928 So.2d 118 (La. Ct. App. 2005)Karen Painter Randall is aPartner at Connell FoleyLLP. A Certified Civil TrialAttorney, Randall providesrepresentation and advocacyservices to a wide rangeof professionals and businessesin complex litigation.Randall is the former Chair of the USLAWProfessional Liability Practice Group and amember of its Leadership Committee. Randallalso manages the Professional Liability andDirector and Officer Litigation Practice Groupsat Connell Foley, USLAW NETWORK’s NewJersey firm. Randall has lectured and writtenextensively on defense, coverage and risk managementissues while also serving in key leadershippositions with the American BarAssociation, Defense Research Institute andCouncil on Litigation Management.Steven A. Kroll is an associateat Connell Foley LLP inthe Professional Liabilitypractice group. In additionto representing professionalsin various areas, Kroll representscommercial landlordsand tenants in mattersrelated to premises liability. Kroll is a 2009graduate of Rutgers-Newark School of Law,where he graduated cum laude, and receivedthe distinguished award of Order of the Coif. Formore information on Connell Foley, please visitwww.connellfoley.com or call 973.535.0500.