The Trial Lawyer’s Guide to (Ethically) Accessing, Authenticating, and Presenting Social Media Evidence

John J. Powers and Michael C. Zogby, partners in the Products Liability & Mass Tort practice group, presented “The Trial Lawyer’s Guide to (Ethically) Accessing, Authenticating, and Presenting Social Media Evidence,” at the Trial Attorneys of America annual conference in Chicago, on June 9, 2016.

Hundreds of millions of people of all ages and socio-economic backgrounds throughout the world feel comfortable sharing pictures and expressing their thoughts and opinions on social media sites available to the public. This includes plaintiffs, witnesses, judges, lawyers and jurors, and for that reason, social media has become an invaluable tool in the litigation process. The ethics rules guide attorneys in obtaining social media evidence in discovery, and the rules of evidence govern admissibility of this information and data. The publicly available social media information collected through different websites can be introduced into evidence and used at trial. Social media is also a powerful tool that can aid attorneys in jury selection and in researching judges who might oversee the case being tried.

Simply put, social media has the potential to provide trial attorneys with invaluable insight that remained virtually hidden just a decade ago. However, the limitations and pitfalls of obtaining and using social media are also in the process of developing as courts grapple with its use in discovery and in the courtroom. John and Mike discussed how to ethically and properly obtain social media evidence, and also how to use social media sites as research tools before and during trial, providing guidelines and sharing personal experiences.

Associates Julie Tersigni and Ashley Corkery provided invaluable assistance preparing the slides, materials and compendium of cases for this presentation.

The Trial Attorneys of America, founded in 1969, is an invitation-only organization, in which membership is limited to 200 trial attorneys who devote a substantial portion of their practice to the defense of product liability litigation and to corporate counsel who work primarily in that area. Mike and John are both members of the organization.