Social media posts a growing aspect of litigation holds

BOSTON — Information gleaned from social media should be top of mind when lawyers are considering e-discovery requests in litigation matters ranging from personal injury to labour and employment and the corporate sphere, according to a panel of in-house lawyers.

Despite the way many people freely share their personal information on Twitter, Facebook, and Instagram these days, many lawyers don’t think to turn to it for valuable material to use against someone in a case.

“Don’t assume your outside counsel is fluent in social media,” said Michelle Sherman, senior corporate counsel for litigation at Farmers Group Inc., during a panel discussion about social media and the importance of including it in a litigation hold at the Association of Corporate Counsel’s annual meeting in Boston yesterday.

Sherman and fellow presenter Toronda Silas, privacy officer and senior counsel for new media and transactions at Cox Enterprises Inc., discussed the importance of doing social media audits for labour, advertising, and corporate law.

They advised trying to avoid overly broad requests that could result in receiving too much material to filter through that ends up being irrelevant to the case in question.

“I always include a request for social media as well as doing my own internal investigation. With formal discovery requests, I time the requests to aspects of the case,” said Sherman. “I have found if someone has social media and there could be something relevant to your case, if you can somehow show it came from the publicly available information, it will often settle a case.”

Sherman advised taking screen shots of relevant social media posts as soon as possible in the event it’s later deleted. If the material is deleted — something some lawyers even advise clients to do — it provides other opportunities.

“Let them delete stuff because then there can a motion for spoliation sanctions,” she said.

Sherman spoke about a case she handled in which an employee claimed she was permanently disabled, but her own Facebook photos suggested otherwise.

“It turned out that from the date she was appealing her status in terms of disability, there was in fact a picture of her standing in front of a waterfall at a hotel in Cozumel with the date beside the photo,” she said.

In another disability claim involving a recreational cyclist, Sherman’s team found photos of the person posted to his Facebook page that included the altitude of where he was riding.

While some lawyers may think to turn to social media in personal injury or criminal cases, Sherman has also used it in employment cases.

“A lot of people still have public profiles,” she said. “I’m finding that lawyers are coming slowly to social media. A lot of outside law firms are not comfortable with social media so they don’t think of the gems. It’s like not asking someone for their e-mails — you just wouldn’t do it nowadays.”

Sherman noted that ethics rules do apply. “You can’t pretend you know someone or try and fake friend them on social media to gain access,” she said.

But it’s not just individuals who can be caught in the social media sting. Companies that don’t understand that there are rules even in the Wild West of Twitter can also be caught up in their own activities online, especially in the advertising and marketing law context.

Silas warned against companies using social media for their own purposes when it could come back to bite them. She referred to a case last year involving actress Katherine Heigl who sued drug store chain Duane Reade Inc. for $6 million for retweeting a paparazzi photo of her coming out of one of its stores. The tweet read: “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” It was also used on the company’s Facebook page to “imply falsely that Plaintiff endorses Defendant,” Heigl’s lawsuit charged.

In the end, the two parties settled and Heigl donated the money to charity.

“It really underscored that as far as she was concerned, they were trading on her image,” said Silas.

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