Social media has changed how we communicate, share, stay informed, and keep in touch. Unsurprisingly, it’s also changed how we navigate discovery in many civil claims, including personal injury cases. Social media postings can provide an essential window into noneconomic damages claims in particular, giving an “inside view” of an injured plaintiff’s quality of life or pain and suffering following an accident.
But social media platforms also pose a number of discovery challenges. Messages on platforms like Facebook, Twitter, Snapchat, and Instagram are increasingly becoming the subjects of discovery, disputes, and litigation. Here, we look at some of the biggest challenges and opportunities in social media discovery during personal injury cases.
The Duty to Preserve Social Media Postings
Social media postings aren’t exempt from the duty to preserve that affects other types of potentially relevant information. Consider, for example, Allied Concrete Co. v. Lester, 736 SE 2d 699 (Va. 2013). The case arose from a car-truck accident between the Lesters’ vehicle and a concrete truck driven by an Allied employee. The concrete truck crossed the center line and tipped, landing on the Lesters’ vehicle and killing Mrs. Lester. Mr. Lester sued Allied for his wife’s wrongful death and for compensation for his own injuries.
At trial, the jury awarded Lester $6.227 million on the wrongful death claim and $2.350 million plus interest for his personal injury claim. Allied appealed, arguing that Lester had conspired with his attorney “to intentionally and improperly destroy” evidence in the form of Facebook posts, among other topics. Allied claimed, in part, that Lester had “cleaned up” his Facebook page on his attorney’s instructions, deleting items like photos of Lester at a party, and had also deactivated the page briefly in an attempt to avoid a discovery request.
While the deleted items were eventually produced, the court ordered sanctions of $180,000 for Lester and $542,000 for his attorney. The latter also accepted a five-year suspension from practice for his instructions to Lester.
Lester provides an example of what to avoid when social media discovery issues arise. Attorneys seeking to comply with discovery rules can ensure that clients have reasonable instructions for ensuring preservation in case social media postings are requested in discovery. Attorneys can also familiarize themselves with the data access and privacy policies of popular social media platforms.
Admissibility of Social Media Postings
Generally speaking, electronic communications and information are discoverable, including communications and information in the form of social media postings. Any party may collect electronic communications and postings that are made public and may request any nonpublic materials through discovery based on usual standards of privilege, relevance, and proportionality.
At trial, the authenticity of social media postings must be established for the item to be admissible in evidence. Often, social media content can be authenticated and admitted using the same processes used for items like paper documents and photographs. For instance, a witness may testify that he or she posted a tweet or received a text message.
Authenticating social media postings through witnesses who saw them may pose an additional challenge. For instance, it may be necessary to walk the witness through the steps they took to log onto the social media site, scroll through it, and view the content in question. Once these steps are met, however, the witness may be asked to state whether or not the version of the content presented to them in court is an accurate and fair reflection of what they saw online.
Attorneys may occasionally face an added challenge: demonstrating that the person whose name is on the account is the one who made the post in question. Here, reviewing state authentication and admissibility rules is essential, as states currently take differing approaches to this question.
Challenges in Gathering Social Media Information for Discovery
Social media posts present certain challenges under the duty to preserve. Unlike paper documents or emails, social media posts are created and published on platforms that are ephemeral and rapidly changing by nature. Add platform-specific algorithms that show or hide content based on its determination of “relevance” to users, and legal teams find themselves facing additional levels of effort in order to locate and preserve social media messages.
Technical questions arise as to the best way to gather and transmit social media evidence to opposing counsel, as well. For instance, taking screenshots or printing page images can divorce this information from its context, including context provided by page metadata. Some social media sites, like Facebook and Twitter, provide tools that allow users to download some or all of their social media posts. However, these tools may only be available to the account holder, and they can result in unwieldy files that contain a user’s entire history, rather than the specific posts or content identified in the discovery request. Specialized forensic software can capture and sort more specific information, but may be costly.