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Lawyers beware: Handle social media information with care

Technological advances continue to make life easier and yet more complicated at the same time.

Walter A. Herbert, Jr.

Take “frictionless” social media — full integration between sites like Facebook and third-party applications and websites so that friends and family know where you are and what you are doing at all times, without a user having to make any status updates.

More and more sites and apps automatically share user information without any action taken on the part of the user, hence the lack of friction.

“The idea is that people who are connected to Facebook are connected to everything else on the Internet,” said Stephen D. Riden, a commercial litigator at Beck Reed Riden in Boston. “But it also means giving away information. I have several friends that, on a daily basis, I know what articles they are reading — it’s a little creepy.”

For fans of social media, such ease of use is a positive development.

But for lawyers?

Walter Herbert Jr., chairman of the Maryland State Bar Association’s Family and Juvenile Law section, said many discussions and seminars now deal with using social media in litigation and how lawyers need to protect themselves when it comes to how information was acquired.

“You can certainly get an enormous amount of information from electronic sources,” Herbert said. “The question becomes though, what can you do with it legally?”

He said there have been instances of lawyers or investigators creating fake social media accounts to “friend” targets of litigation to get information. And sometimes information provided by clients to use against the other side in a lawsuit might have been gathered under ethically questionable or maybe even illegal circumstances.

“You have to be careful when you’re a lawyer dealing with this information — you don’t want to risk your own license,” Herbert said. “You need to be really careful because the court is going to hold you to a higher standard.”

“This is a treasure trove of information,” said Lee Rosen, who practices family law at the Rosen Law Firm in Raleigh, N.C. “No one realizes that they have authorized that sort of checking in and frictionless reporting and we suddenly know things about them they don’t even realize.”

As a divorce lawyer, “in the old days we had to follow an adulterous couple sneaking into a hotel room, holding hands,” Rosen said. “Now [the information] is on Facebook for the world to see.”

This wealth of information, though, holds potential pitfalls for lawyers because courts — increasingly savvy about digital evidence — are holding them accountable for how the information was collected.

Online, worldwide

Facebook has made several recent additions to its social media platform to increase users’ sharing of information with a minimum of effort. As it continues to increase its partnerships with third-party sites, users who enable other sites will then have their information displayed on Facebook as a status update or on their wall, depending on the app.

Once enabled, a user’s activity is continuously tracked — and shared. So the videos that are watched, the articles read, the music listened to or the purchases made may all be visible for others to see.

“What I’m really excited about as a divorce lawyer is frictionless check-ins at locations,” Rosen said.

While most users still have to check in manually, GPS-enabled devices will soon automatically check in at the location and share the news that, for example, a user intending to cheat on his or her spouse just checked in at the Bellagio Hotel in Las Vegas, he said.

Dating services have started to use this frictionless reporting, Rosen added, so that a person is using the site, as well as details about their activities on it, will be added to a user’s status update as well.

People don’t understand the technology and its implications, Rosen said.

“No one understands the privacy settings on Facebook and they forget who they are friends with and which apps collect information and disseminate it to others,” he said. “No one [will] care until it is too late.”

Facebook’s 750 million users are also receiving a new feature known as “Timeline,” which compiles all available data about a user — including information from friends and third-party sources — and plots it all by date and time.

For opposing counsel, that means simply looking up relevant dates to find out what a party was doing — eating at the local McDonald’s, shopping for shoes online or reading an article about the side effects of medication.

Bradley S. Shear a Bethesda solo practitioner with a syndicated blog on social media, said it is still really the “tip of the iceberg” when it comes to how much information is being shared and the ramifications of that sharing.

“It’s very troubling the way things are going with the utter lack of privacy,” Shear said. “And, these issues are only going to keep cropping up and increase over time.”

The electronic discovery implications of such technology are boundless. While it may be innocuous for friends to know of a recent purchase of the latest Stephen King novel, “a criminal defendant may have just purchased what turns out to be a weapon on Amazon and that purchase information is evidence of interest to a district attorney,” Riden said.

Employers could check an employee’s Facebook account to learn that they spent their day surfing the Web, buying holiday gifts or watching kittens do funny things on YouTube.

“So much of the discovery process is just setting up a timeline and creating a chronology of events — when certain things happened and what was said and done,” Riden said. “Technology that can do that automatically and is almost failsafe makes a lawyer’s job much easier.”

The Timeline feature also serves as a reminder that what you do online is never forgotten and does not just disappear, Riden said. So pictures from a college fraternity party can still be found by a potential employer performing a background check years later.

“As the old saying goes, ‘Loose lips sink ships,’” Shear said. “Whatever you put out there on the Internet is really going to be out there forever.”

And, accessing a user’s information is surprisingly easy and is often standard practice when preparing for litigation.

“The first thing lawyers are doing now is subpoena that information,” Herbert said. “And, on the other side, they’re saying to their clients ‘Get rid of it, take that stuff down.’”

Digital breadcrumbs

While the possibilities for opposing counsel are positive, keeping a client who is a social media fan from exposing too much presents a challenge.

“By the time most people come to see us, it’s too late,” Rosen said. “They have already created mounds of evidence in this way that they didn’t even realize they were creating.”

Defending a client who has “digital breadcrumbs” — items left in their online tracks that leave a trail for opposing counsel — puts lawyers in a tougher position, Riden acknowledged, and some circumstances may require disclosure of information to the other side.

In situations where potentially damaging comments have been made, “I try to get the context for what was said and the background to hopefully make the errant Tweet or comment better understood to not harm my client’s case,” he said.

Most important, do not remove information from social media or instruct a client to do so.

Recently, a state court judge in Virginia awarded defense counsel $722,000 in clawback legal fees after the plaintiff attempted to thwart access to his Facebook account, where he also deleted pictures.

Judge Edward Hogshire ordered the plaintiff’s attorney to pay $522,000 of the total sanction; he had previously reduced the $10 million jury award by $4.13 million after finding that both the plaintiff and his attorney had withheld and lied about evidence to the court.

“You really have to be careful with this information and watch your back,” Herbert said.

Instructing clients to stay off Facebook or Twitter is impossible, Rosen said.

“Telling someone to get off of social media is like telling them to stop breathing,” he said. “Our responsibility is to make them aware of what they may have done and may continue to do” by explaining the implications of social media use.

Herbert said that with the acceptance of sharing on social media the behavior was unlikely to diminish.

“I think people are now culturally comfortable with putting their life online,” Herbert said. “I don’t think that will change — you’re going to have more and more information out there.”

Shear said he hopes that, as awareness builds of how much information is available and how easily it can be acquired, there will be legislation put in place to protect people.

“A lot of this sharing of information might look great on paper but if you look at it from a public policy standpoint, maybe it isn’t the best thing,” Shear said. “I believe the Fourth Amendment still matters in the digital age and there needs to be more protection of privacy rights.”

LawyersUSA is a sister publication of The Daily Record. Legal Affairs writer Ben Mook contributed to this article.