From the Newsletters - 10 Things Trial Lawyers Should Know About Social Media Evidence

The law has been slow to catch up with social media's all-encompassing reach. Here are things to keep in mind, especially - but not exclusively - if you represent plaintiffs in litigation.

"10 things to know about social media"
By Kathryn Conway
Tort Law - December 2016

More and more of our interactions take place on social media, but the law is struggling to catch up. With that in mind, Chicago trial lawyer Kathryn Conway offers 10 things that lawyers - especially plaintiffs' lawyers - should keep in mind about discovery and admissibility of social media evidence. (For more, see Richard S. Kling, Khalid Hasan, and Martin D. Gould, Admissibility of Social Media Evidence in Illinois, in the January 2017 IBJ.)

1. Because Illinois has so little case law on social media evidence, "most issues will be decided on a case-by-case basis according to traditional discovery and admissibility principles," Conway writes.
2. There's no evidentiary privilege for social media communication.
3. Even though your client uses restrictive privacy settings, "courts have generally allowed discovery of posted content so long as the requested production is relevant," Conway writes.
4. Remember, public social media posts are not the same as private, one-to-one messages sent on social media. If your opponent is trying to get access to your client's private messages, "a well-founded objection should be made," Conway writes.
5. "Some courts have ordered parties to turn over their social media login information to the other side for inspection," Conway writes.
6. Warn your clients not to delete anything they've posted that may be relevant to the case. "[A]t least one [Illinois] court has held that attorneys must take affirmative actions to ensure their clients comply with the duty to preserve," she writes.
7. Subpoenas to Facebook and other third-parties seeking access to someone's social media posts and other information "are likely to be unsuccessful and may be quashed," Conway writes.
8. Facebook has a "Download Your Information" tool to help its users comply with legitimate discovery requests.
9. Twitter has a way to do this, too.
10. Definitely don't "friend" an adverse party once you've filed suit, and be wary of doing so before you file.