Social Media Evidence Checklist – 10 Things You Should Do NOW
10 Things to do NOW regarding Social Media – A Valuable Checklist
By Andy Adkins – When interviewing your client during the intake process, it is imperative that you review their social media liabilities. It is probably a better idea if you or your paralegal review the social media sites, as opposed to asking the client to review it – they may miss something important (accidentally or worse, on purpose).
There are literally hundreds of different social media sites and fall into different categories including blogging and selling sites.
Here are some suggestions to consider and ask your client:
- Which social media sites do you have an account? Make sure you include the following:
- You should also ask them about their online social media engagement.
- Do they lurk?
- Do they post and if so, how often?
- Do they repost or share posts from friends and if so, how often?
- Do they post photos and if so, what kind and how often?
- When is the last time they posted on these sites?
- Because they hired you to represent them, you should also advise them on their ongoing social media activities until the legal matter is resolved.
- Stop posting – do not post or repost anything until the legal matter is resolved.
- Change their privacy setting to restrict others from seeing their posts.
- Do not delete anything – at least until the legal matter is resolved.
- Do not delete or deactivate the account.
- For each of these sites, you need to determine if there is a social media liability, based on the relevant facts of the case. You can do this a couple of ways, but perhaps the most thorough is to get your client’s credentials (username, password) for each of their social media sites.
- You may have the client change the password for a short period of time for you to conduct the evaluation, then you can let them know you are done and they can change their password.
- There are several ways to capture this data, but most attorneys simply either print the pages on paper or to PDF. Note that if you print to PDF, you can search those documents.
- Some sites (Facebook, Twitter) allow you to download the users’ archives. Note that this doesn’t necessarily include all the data nor does it include any meta data, but it does provide content.
- Once you have the data you obviously want to review it for relevant facts concerning the legal matter.
- You should convey to your client the potential types of information you are looking for, so that they feel more comfortable about sharing with you.
- If you find potential liabilities, discuss these with your client.
- You also need to know the last time the social media sites were accessed, and by whom (some people share their passwords and accounts).
- Are the client(s) social media account “private” or “public?” It’s important to know this ahead of time because not all social media sites’ privacy settings have the same definitions.
- Is there any information you’ve come across that may be private, meaning you can’t get access to it?
- Keep in mind the various privacy settings differ on the different social media sites. You should know these in advance prior to searching for information on your client’s social media sites.
- Make sure you keep in mind any legal or ethical issues when accessing the data. This should include:
- Privacy issues
- Confidentiality and privilege responsibilities
- Social Media site Terms of Service
- Your state bar Rules of Professional Conduct
- Depending on the legal matter, you may want to continuously monitor your client’s social media sites throughout litigation in the event new data relevant to the case is posted.
- Like it or not, what your client tells you and what they actually do are not necessarily the same.
- Things to keep in mind during the social media evidence process:
- Social media sites protect their customers’ privacy; they may not respond to civil subpoenas.
- While your client may “own” the social media account, not all posts are created by your client. Others may post to clients’ timeline(s).
Andy Adkins is the Chief Information Officer of Social Evidence, LLC, a leading cloud-based social media discovery, organization, and analysis application. He has been an independent legal technology consultant for more than 25 years, a past chair of the ABA TECHSHOW (2000, 2001) and past co-chair of LegalTech Conferences (2000-2007). He is the author of “The Lawyer’s Guide to Practice Management Systems,” published in April 2009 by the ABA Law Practice Management Section. He can be reached at 352.538.5346, email@example.com, or www.social-evidence.com.
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