If you are considering litigation, you are already two steps behind the curve if you have not considered how to use social media sites to your advantage. This is the first in a three-part series on how to use social media to your advantage in litigation. Today’s article covers ways to obtain this information prior to litigation. Part II will address the ethics of searching for social media information. And finally, Part III will explain how social media can help you win (or lose) in court.
If you are considering litigation (or are considering taking some action that may lead to litigation, such as terminating an employee), you would ideally keep all background documents such as contracts, receipts, correspondence, etc. You may not realize that social media information can be just as helpful.
For example, an auto mechanic may post something online related to his work performance or may be making statements amounting to warranties (useful in a DTPA suit); a debtor may be posting pictures of his brand new car or Rolex. Recently, a Dallas 911 operator was fired for posting racist comments on her Facebook page; years ago, New York Senator Christopher Lee posted a picture of himself, half-naked, in a dating ad on Craigslist. This information was freely available and ripe for anyone to use against them. Facebook, MySpace, Twitter, LinkedIn, Instagram, etc. are revolutionizing the amount and types of information available for use in litigation.
Here are some general steps to uncover this information:
- Google. From business websites to personal blogs, use Google to gather everything you can. Search the person or business’s name, address, phone number, known aliases, and “screen names” (if known). If there is a webpage, print it; Craigslist ad, print it. Be sure that the URL is printed on the bottom along with the date that you printed the webpage. The internet is a dynamic space, and websites change every day—especially once litigation is threatened. Printing everything immediately will avoid the later hassle of replicating the webpage as it existed when your problem arose (it can be done, but its more difficult). Double check your printouts to make sure it is an accurate representation of the website (this is especially important if you eventually need to use the printout as evidence).
- Check Facebook/Twitter/LinkedIn/etc.: For Facebook, search “Pages” with the name of the business; search “People” for the individual or owner, and any other person who may be involved. Facebook allows third parties to “tag” or “check in” other users, so try to be as comprehensive as possible. Again, print everything. Be sure you have expanded the profile page as far as it will go to capture the most information. Print every page on the person’s profile and print all pictures (in color). For Facebook, every action taken by the profile user should have a time stamp—that information can be crucial.
Do not use deceptive means to obtain this information. If the user’s profile information is not publicly available, do not try and “friend” that person (more on that in Part II).
- More on Facebook: Facebook, and other social media sites, allow users to characterize themselves by joining “groups,” “liking” products, “checking in” at locations around town and listing favorite movies, TV shows, and books. While this may seem innocuous to you, I would recommend printing all of it and letting your attorney determine what is useful.
- Other Sources: some internet search engines are specifically aimed at gathering personal data. Pipl.com, Zabasearch.com and Wink.com can all be used to gather background information. Pipl.com specifically searches sites like Facebook and MySpace for images and posts.
- It cuts both ways: if you are considering a lawsuit, the other party probably is too, and may be doing background research on you! The best course of action is prevention: monitor your “online” presence through Google; know your privacy settings and keep them current; and only post things that would be acceptable to your mom, boss or a customer. Once something is on the internet, it is out there forever (even if you delete it). I would not recommend deleting old posts for the purpose of making yourself or your case look better. If you are considering litigation, such activity could be considered “spoliation” and subject you to sanctions, or just make you look untrustworthy to a judge or jury. Instead, bring it to the attention of your attorney. Again, the best course of action is to not post something like that in the first place. Prevention is always easier (and cheaper) than damage control.
Keep in mind that all documents generated by you will be discoverable in litigation. In some cases it may be wiser to have your attorney do all of this searching (which could then cloak the documents with the attorney’s work product privilege). However, consider your goals: if your goal is to avoid litigation but resolve your problem, you may want to “show your cards” and use the social media information as leverage during negotiations. Keep in mind that once you confront the other person with their own Facebook page, that person will likely delete, remove, or alter that content. While informal negotiation has its benefits, litigation can force the other party to respond. If you are unsure which route to pursue, consult an attorney for specific advice. If you already started collecting social media evidence, let the attorney know.