‘Tool for candor’: Using social media evidence in personal injury litigation
Two points about social media: Most Americans have at least one account, and a significant percentage of those accounts are wide open to anyone who wants to look.
Who wants to look? Personal injury attorneys, among others. They want to know what a defendant has been posting, as well as what their own clients have been up to online.
What do they find?
“I can’t tell you all the horror stories,” said Allen Honick of Furman | Honick Law in Owings Mills.
While attorneys are not legally permitted to “friend” someone to access a private account – an account visible only to online friends of the owner — they are free to examine public accounts.
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Honick said that as a first step in nearly every personal injury case, he or an associate will go online to search for social media posts by a defendant.
“Almost always it’s open access, unrestricted to the entire universe,” he said. “We can get the information we need.”
Honick’s firm also pays a subscription fee for “skip trace” software, so named because it is often used by debt collectors to find someone who has skipped town without leaving a forwarding address. In addition to phone numbers, email addresses, home addresses, property details, and legal and court histories, skip-trace programs can find social media accounts.
Knowing about the existence of a defendant’s accounts is helpful, Honick said, explaining that he will also ask whether a defendant has social media accounts in an interrogatory or a discovery request and then cross-reference the information.
“Oftentimes they don’t match up,” Honick said. “That gives us ammunition to go back to the defense and say, ‘Remember that question about social media accounts and you said you don’t have any – what do you have to say about all this?’
“Whether the party has posted about the issue itself is beside the point,” he continued. “It’s a tool for candor.”
Social media posts, of course, must be authenticated if they are to be admitted into evidence, according to Maryland Rule 5-901.
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In Griffin v. State (2011), the Maryland Court of Appeals focused on the need for social media evidence to have distinctive characteristics to overcome the possibility that an account was hacked or otherwise manipulated. However, in Sublet v. State (2015), the court adopted the “reasonable juror” standard, which requires only that the evidence be “sufficient to support a finding that the matter in question is what its proponent claims.”
In cases where a defendant denies creating – or altering or deleting – a post, attorneys can hire a vendor to use social media evidence collection software to produce a searchable file.
The software captures not only the content of posts but also their metadata, which can include such distinctive characteristics as the date and time a post was created or deleted, the GPS location of where a photo was taken, the IP address of the device on which a post originated, and hash values, which are digital fingerprints that identify a post and can indicate whether it has been changed.
“Be prepared to bring in forensic experts when the use of whatever social media you want to use is imperative to your case,” said Thomas Keilty of Keilty Bonadio in Baltimore. “Doing it the wrong way – collecting it, authenticating it – can backfire. You can blow up your own case.”
Keilty also emphasized that attorneys should be highly selective when seeking to use social media as evidence.
“This goes for any discovery: You want to narrowly tailor what you’re asking for, so a court doesn’t find it unreasonable,” he said. “I think particularly with social media – because of the heavy lifting involved in collection, preservation and authentication – it’s even more important that it be narrowly tailored, especially if you want to credibly argue to a court that you’re entitled to it.”
Personal injury attorneys also must advise their clients to preserve their own social media records and are wise to review those records.
“We pride ourselves on doing our due diligence to make sure what we’re getting ourselves into is real,” Honick said. “If the allegation is that a plaintiff is disabled or limited and they’re posting things online that they’re more capable than they’re representing in court, that could be a huge cross-examination problem for your client.”
He cited the alarming example of a client with a back injury who appeared in a Facebook photo atop a mechanical bull.
“For her birthday her friend basically dragged her out of the house and brought her to some bar that has a mechanical bull,” Honick said – adding that the bull was never turned on.
“Fortunately, we were able to say, ‘That bull wasn’t moving,’” he said. “But that’s the danger of social media taken out of context. In the hands of a good attorney, that could kill your entire case.”
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