This post is part of JGL’s continuing series of blog posts regarding the use of social media evidence in litigation. Here are some tips for using do-it-yourself tools to in order to develop social media and smartphone evidence:
Social media represents a collection of data that provides valuable details about a party’s life. This information can include, but is certainly not limited to, where a party has been, what they have done, the state of their physical condition or state of mind, and the people with whom they associate. This information can be used for a variety of purposes such as impeachment evidence and evidence of damages. A party’s friend list also can be used in order to develop a list of potential witnesses or evidence of a relationship between the party and another individual.
Information available on-line can include a party’s:
- Date of birth;
- Political affiliations;
- Family members/friends;
- Activities; and/or
While social media evidence can be developed through traditional discovery tools, sometimes “do-it-yourself” tools are the better means by which to develop useful information. Such tools can be as basic as a Google search of an opposing party’s name or business. Additionally, the Maryland Judiciary has a robust search function that allows you to search any cases filed by or against your opposing party. There are numerous third party providers that can provide valuable name and address information.
Information not protected by privacy settings can be gleaned from social media applications such as Facebook, Twitter, and Instagram. This information can include posts, photographs, friend lists, “likes,” and “shares.”
Publically available information also can include blog posts written by or about the opposing party, news media accounts regarding the party, advertising, and/or videos about or posted by the party.
All of these tools do not require the use of formal discovery and, as such, are not subject to the restrictions and limitations imposed by Court rules. However, you should always resist the temptation to use trickery or misrepresentation to access a party’s otherwise private social media information. This would include pretending to be another person (“catfishing”) or using other forms of deception in order to gain access to a party’s social media login information (“phishing”). Additionally, counsel should know that they should never send “friend requests” to represented parties.