Two points about social media: Most Americans have at least one account, and a significant percentage of those accounts are open to anyone who wants to search for them.
who wants to look Personal injury attorneys, among others. They want to know what a defendant has posted and what their own customers have been doing online.
What do you find?
“I can’t tell you all the horror stories,” said Allen Honick of Furman | Honick Law at Owings Mills.
While the law doesn’t allow lawyers to befriend someone in order to access a private account — an account that’s only visible to the owner’s online friends — they are free to check public accounts.
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Honick said that as a first step in nearly every personal injury case, he or a staff member will search online for a defendant’s social media posts.
“It’s almost always open access, unrestricted to the entire universe,” he said. “We can get the information we need.”
Honick’s company also pays a subscription fee for “Skip Trace” software, so called because it’s often used by collection agencies to locate someone who left town without leaving a forwarding address. In addition to phone numbers, email addresses, home addresses, property details, and legal and court history, skip-trace programs can also find social media accounts.
“I can’t tell you all the horror stories”, Allen Honick from Furman | Honick Law at Owings Mills spoke about what lawyers find when they access social media accounts. (Submitted photo)
It’s helpful to know about the existence of a defendant’s accounts, Honick said, explaining that in an interrogation or disclosure request, he will also ask if a defendant has social media accounts and then cross-reference the information become.
“Often they don’t go together,” Honick said. “That gives us reason to go back to the defense and say, ‘Remember the question about social media accounts and you said you didn’t have any — what do you say to all of this?’
“Whether the party has posted about the issue itself is immaterial,” he continued. “It’s a tool for openness.”
Of course, per Maryland Rule 5-901, social media posts must be authenticated in order to be admissible in evidence.
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In the case of Griffin v. State (2011), the Maryland Court of Appeals focused on the need for social media evidence to have unique characteristics to eliminate the possibility that an account was hacked or otherwise compromised. However, in Sublet v. State (2015) adopted the standard of a “reasonable juror,” requiring only that the evidence be “sufficient to support a finding that the facts in question are as claimed by their proponent.”
In cases where a defendant disputes the creation, modification, or deletion of a post, attorneys may hire a vendor to create a searchable file using social media evidence gathering software.
The software captures not only the content of posts, but also their metadata, which includes such distinctive features as the date and time a post was created or deleted, the GPS location where a photo was taken, and the IP address of the device on which a photo was taken a post was created and hash values, which are digital fingerprints that can identify a post and indicate whether it has been modified.
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“Be willing to consult forensic experts if your case requires the use of the social media you want to use,” said Thomas Keilty of Keilty Bonadio in Baltimore. “Getting it wrong — collecting it, authenticating it — can backfire. You can blow up your own case.”
Keilty also stressed that attorneys should be extremely selective when attempting to use social media as evidence.
“That’s true of any discovery: you want to be specific about what you’re asking for so a court doesn’t find it unreasonable,” he said. “I think that with social media in particular – because of the high overhead involved in collecting, storing and authenticating – it’s even more important that it’s tightly tailored, especially if you’re going to be able to show credibility in front of a court that you have a claim.” have on it.”
Personal injury attorneys must also advise their clients to keep their own social media records and would do well to review those records.
“We pride ourselves on doing our due diligence to make sure what we’re getting into is real,” Honick said. “If the allegation is that a plaintiff is disabled or disabled and they are posting things on the internet that they are better able to represent than they are in court, that could pose a major cross-examination problem for your client.”
He gave the alarming example of a client with a back injury who was pictured riding a mechanical bull in a Facebook photo.
“On her birthday, her friend practically dragged her out of the house and took her to a bar that has a mechanical bull,” Honick said, adding that the bull was never on.
“Luckily we were able to say, ‘That bull didn’t move,'” he said. “But that’s the danger when social media is taken out of context. In the hands of a good lawyer, that could derail your entire case.”
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