| Jan 20, 2014
Courthouse Libraries BC maintains a regular column in the Advocate and in the first issue of 2014 we promised to follow up on the issue of technological competence and lawyering. Is it, for instance, even possible to opt out of a reasonable understanding of social media? Consider this in light of how commonplace social networks have become, and in the specifics set out in the definition of "competent lawyer" in the Code of Professional Conduct for BC.
Here is part one in a series of tips for using social media responsibly in litigation.
Social media and law generally
Quite apart from evidence in litigation, there are many intersections where social media and the justice system encounter one another—in the context of marketing legal services, solicitor-client relations, law firm management, and other potential ethical quagmires. As far as marketing activities go, the same rules extend to social networks as more formal media (the CBA has some good material on this), and the informal nature of the former can be at tension with the rectitudes of a profession rooted in tradition, not pop marketing. From a law firm management point of view, the Law Society of BC released a model social media policy a number of years back and firms are still grappling with what it means to be citizens of the social web. Then there are the debates over how judges, juries and court participants ought to use or avoid social media now that more than a few dimwitted tweets or status updates have caused humiliation and worse. Log into our Reading Room and check out Courts, Litigants and the Digital Age for some interesting reading on this topic. For the present purposes, we're not talking about any of the above.
Social media evidence in litigation
Social media evidence issues differ in one significant way from the examples above. It's not really about lawyers choosing social media; it's about the rest of the world having already done so and how we deal with it. Litigation counsel take their clients' problems in whatever condition they arrive, and a lawyer cannot choose to ignore factual matrix of a case. So in contrast to questions like "should my firm have a Facebook profile?", "should associates be subject to a social media policy?", or "should judges "friend" lawyers?", if there are parties from a file using social media, it's more a case of "do I have a sufficient plan for coping with social media evidence?"
This post presumes that most readers know common social media basics, like what Facebook is and how Twitter works. Failing during discovery to canvass aspects of a person's online life is no more excusable than neglecting to discover banking, medical, employment or family details of an individual. Lawyers who grapple with social media will face a few questions, such as:
- Do I understand how social media can be probative, or how it is received as evidence by the Courts?
- Do I understand my professional ethics with respect to accessing social media and can I gather evidence without falling afoul of ethical duties?
- Have I ensured that my client understands how his/her/its continued use of social media accounts might impact the case?
- Do I know how to collect and preserve social media evidence correctly?
- Am I using the evidence correctly?
This post will look at a couple of these questions, and continue in a future post with tips on the remainder.
How is social media a matter for evidence?
The rise of social media in court cases is staggering. The authors of Throwing the (Face)Book at ’Em. The Use and Abuse of Social Media in Civil Litigation, published in the March 2011 of Advocates' Quarterly (the link is to an online copy) searched from June 12, 2007 to November 1, 2010 on Quicklaw and discovered over 230 cases that mentioned "Facebook". Less than two years hence, I extended that same search to today's date (January 17, 2014) and found over 1,300 cases on Quicklaw. For Twitter the picture is similar. From June 2007 to November 1, 2010 you could only pull nine cases with "Twitter" in a Quicklaw search. As of today, I see 70.
Employment, family law, personal injury and any claims where conduct and character are live issues can all become hotbeds for social media evidence. The Advocates' Quarterly article provides a handy discussion of how social media has become critical to litigation, although for the legal tests in BC one needs local sources.
David W. Hay's paper "Social Media: Photographic, Video, and Electronic Evidence", prepared for the 2012 CLE BC Personal Injury Conference, features a good review of Fric v. Gershman, 2012 BCSC 614, a case involving defence counsel's applications for rather broad access to a private Facebook account, including comments about photos. The defendant was partly successful, but by no means wholly, and the case supports the following conclusions, which Hay provides:
- Materiality and proportionality are alive and well (perhaps somewhat in contrast to some Ontario cases).
- An order against someone for disclosure is likely to require more than simply pleadings, i.e. discovery evidence can also be critical.
- The creation of social media account is not a general waiver of the right to privacy.
- The discovery of social media information won't necessarily entitle use at trial.
- Photos speak for themselves and private commentary about photos is not likely to be compelled.
Fric demonstrates the "clash between the plaintiff’s privacy rights and the probative value of the information sought" and addresses the parameters of social media production under Rule 7-1.
Professional ethics and gathering social media evidence
Browsing publicly available Facebook profiles is one thing. How far can a lawyer probe to get intelligence on another party? Resorting to false pretences is discouraged. Simon Chester, a bit of a maven when it comes to techno-ethical law topics, speaking at the 2013 Pacific Legal Technology Conference warned against "using social networking sites to obtain 'competitive intelligence' on a potential witness or opponent without revealing the lawyer’s true motive".
In BC, chapter 5.5 of the Code of Professional Conduct provides that "subject to the rules on communication with a represented party set out in rules 7.2-4 to 7.2-8, a lawyer may seek information from any potential witness, whether under subpoena or not, but the lawyer must disclose the lawyer’s interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way."
At 5.1-2 the Code states, when "acting as an advocate, a lawyer must not [...] make suggestions to a witness recklessly or knowing them to be false."
The combination of the above raises doubts as to the tactics one might ethically resort to in order to gain access by "friending" people with social media accounts to gain access to information under privacy settings.
How to advise the client
The model Code of Professional Conduct says that a "competent lawyer" will go as far as the retainer demands "investigating facts, identifying issues, ascertaining client objectives, considering possible options and developing and advising the client on appropriate courses of action." How far to coach a client may be a matter of nuance. The New York County Lawyers Association released an opinion directly on this issue, which is worth a glance.
Simon Chester, in a 2013 article in Canadian Family Law Quarterly, encourages lawyers to advise clients to reset passwords and ensure privacy preferences as a matter of routine. After that, it's better to "say nothing" through social media, since anything "will likely be read and assessed by an elderly male judge without a sense of humor."
While posting marathon finish times on Facebook seems ludicrous when that same plaintiff aspires to establish bed-ridden victimhood, this type of thing happens a fair bit. Often the damage is done before the lawyer is involved, but it also happens where there is ignorance on the part of counsel about what clients are up to online. How one advises a client in these cases is a bit like how one coaches tightrope. Don't lean too far one way or the other.
Some advice is clearly merited, but spoliation should not be risked. In Terry v. Mullowney,  N.J. No. 86, the plaintiff scuppered his multi-million-dollar hopes when he attracted adverse inferences from the judge. The young man hastily shut down his public Facebook profile after various evidence of his partying, drinking and daily marijuana use didn't fly so well at a cross-examination. Justice Adams observed:
 Without this evidence, I would have been left with a very different impression of Mr. Terry’s social life. He admitted as much in cross-examination. After he was confronted with this information which is publicly accessible, he shut down his Facebook account saying he did it because he didn’t want “any incriminating information” in Court. I draw an adverse inference against Mr. Terry on account of this statement and conclude that the Facebook account which he shut down and some particular messages which he deleted prior to shutting down the account entirely contained information which would have damaged his claim.
Then there is the other extreme of Beattie v. Beattie, 2013 SKQB 127, which begged for some kind of woodshedding by its end, although some initial timely advice in the manner prescribed by Simon Chester could have been enough. Mrs. Beattie proved her own undoing by handing the other side all it needed to debunk her claim for spousal support based on need. The trier of fact could simply not accept Mrs. Beattie was among the working poor, at least not amid her incessant tweeting about Lexus convertibles, great philanthropy, symphony nights, esteemed somalliers, spa treatments, and such. Asking your client to simply vet their social media accounts to be sure that their version of the facts is, at the very least, not dramatically controverted by what's plainly depicted in their online life, is a good first step.
How to monitor your client's, or any other party's, continued use of social media is another tip to be discussed in the next installment when we discuss tips and information resources dealing with collecting, preserving and applying social media evidence.
In the meantime, if you have anything to add on this topic, please feel free to contact me on Twitter (@nrusse) or at email@example.com.