Using Social Media for Investigations

Social media has become a goldmine for investigations and discovery in civil litigation. The popularity of social media has exploded in recent years. As of 2011, Facebook boasts more than 750 million active users, at least 50 percent of whom log on to Facebook on any given day. Twitter has more than 200 million registered users, with 460,000 new users joining every day, and an average of one billion “tweets” per week. LinkedIn claims it had more 100 million users and in excess of two million businesses with company pages.
With increasing frequency, courts are finding that what a person posts on Facebook can be admitted in litigation.

A paralegal or legal assistant may be asked to conduct research on Google or another Internet search engine of social networking sites for an opposing party, witness, or expert. The supervising attorney may have a legal assistant or paralegal print off screen shots from someone’s Facebook account, then submit an affidavit or otherwise testify about the method in which the information was procured and produced.

Caution should be used, however, when trying to “friend” an opposing party of witness for litigation purposes. An article appearing in the January/February issue of the Federal Lawyer Magazine, Christopher E. Parker, Travis B. Swearingen, “Tweet” Me Your Status: Social Media in Discovery and at Trial, 59-FEB Fed. Law. 34 (2012), the authors suggest that paralegals should not “friend” an opposing party or an witness to obtain information about a person on a social networking site. Courts and ethics opinions have concluded that type of conduct may violate ethical rules (see Philadelphia Bar Opinion 2009-2 available here).

Rather than trying to secretly gain access to a user’s account through a “friend” request, legal counsel can pursue information found on social media through traditional discovery such as interrogatories and requests for production of documents. A paralegal may assist the attorney in drafting discovery requests or responding to discovery requests for information posted on a social networking site.

With the popularity of social media websites, it is likely that a paralegal or legal assistant may be called upon to conduct research and investigation through a social networking site.
Students and candidates for employments should make sure what they post in social networking sites. When it comes time for interviewing, a prospective employer may run a search on the candidate’s name. If a candidate has inappropriate content (such as photos using drugs or alcohol) posted on a social networking site, the person should delete that content from the social networking site.