A multi-part series on the technical and legal challenges raised by the involvement of social media sources and data in electronic discovery and how to overcome them
In addition to the obvious need to not to intentionally spoliate or advise spoliation, the advent of the social media age also raises some additional ethical concerns for attorneys:
As social media has grown in importance, these are questions state bars have begun to address.
Essentially, the rules apply to the medium of social media the same way they applied to each prior medium of communication: no communicating with represented parties (ABA Model Rule 4.2); no communication with unrepresented parties without disclosure of your interest (ABA Model Rule 4.3); and, no communication “involving dishonesty, fraud, deceit, or misrepresentation” (ABA Model Rule 8.4). Bar organizations, including Oregon (and this), New Hampshire, New York State, New York City, San Diego, and Philadelphia, have issued opinions to this effect (though there is some variation in specifically what information must be disclosed for sufficiency).
Beyond those essentials, social media does present some new wrinkles. For example: does an automated notification that an attorney viewed a social media profile count as a communication from that attorney to that individual?
In recent years, the Internet has seen a massive surge in deliberately fake content. Some of it is intended only to entertain or advertise or get attention, but some of it is intended to sow confusion and misinformation. While this poses a real challenge to our discernment of reliable public information, it remains unlikely that any individual – unless they are a public figure – would be impersonated online or have fake materials created about them. As we discussed earlier, most information on the Internet (even with the recent trend) is not “voodoo information,” and mechanisms already exist for consideration of any evidence of falsity.
What we should concern ourselves with, however, is: just how reliable are individuals’ own, real social media posts? Do people really create accurate, spontaneous reflections of themselves and their lives? Probably not, at least not entirely:
In a 2012 paper published in the Vanderbilt Journal of Entertainment & Technology Law, Kathryn R. Brown distilled recent research on social media psychology and found that users selectively screen photos to present themselves as “attractive” and “having fun,” and that they tune their personae to come across as “socially desirable,” “group-oriented,” and “smiling.” . . . Meanwhile, “individuals are unlikely to capture shameful, regrettable, or lonely moments with a camera.” [emphasis added]
So, to at least some extent, we all generate our own mildly “fake news” about ourselves, editing our comments and curating our images to try to appear as we wish to be seen rather than as we may be. This does not mean that there may not be reliable, valuable evidence to be had in social media materials but, rather, that we should consider such materials with this in mind and be conservative in the inferences we draw and the assumptions we make. As one judge put it:
The fact that an individual may express some degree of joy, happiness, or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress.
. . .
While the relevance of a posting reflecting engagement in a physical activity that would not be feasible given the plaintiff’s claimed physical injury is obvious, the relationship of routine expressions of mood to a claim for emotional distress damages is much more tenuous.
Upcoming in this Series
Next, in the final part of this series, “Social Media Summary,” we will review the key takeaways from across all of our social media subtopics.