The process begins with obtaining information via requests for production, interrogatories, requests for admissions, depositions, etc. If used effectively, social media discovery can become an effective defense strategy that will withstand objections and scrutiny at trial.
Social media evidence is important information to explore, especially considering most people (Plaintiffs) tend to have no filter when it comes to posting information about: relationships with their family, romantic interests, employers, prior medical history, who has done them wrong, friends, lawyers, meals, and the list goes on. People also like to share their personal opinions on just about anything – Nike, Chic-Fil-A, NFL protests, etc.
Social media information is potentially important as an admission against interest, assuming the information is relevant. Information a party or witness puts on the internet can potentially be used against them in cross-examination at trial or during discovery. Litigators have never had this type of ready access to so much of what a party or witness says, does or thinks.
Once suit is filed, you need to have a strategy for obtaining social media evidence and how you are going to use it. The first step is to perform an investigation. The second step is to use your discovery tools. The third step is to get the evidence admitted. And the fourth step is ethical considerations. Developing a good social media investigation strategy does more than just provide you with information. It helps you craft discovery requests that ask for specific information, a requirement that now exists in federal courts and that will soon exist in state courts. The specific information requests can help you compile the discovery, comply with discovery requirements, and help you drill down to obtain the facts you need in order to help your case.
David Eaton is a founding shareholder of the firm and practices in the Nashville, Tennessee office. He practices in Kentucky, Mississippi, North Carolina, and Tennessee and focuses in the areas of long-term care defense and general liability claims. As an advisor to health care providers, David has worked closely with nursing home staffs and personnel in the strategy and development of the defenses of cases prior to and through trials. David received a Bachelor of Arts degree in English from Nicholls State University in 1995 and a Doctor of Jurisprudence from Mississippi College School of Law in 2000.
Michael Phillips is a founding shareholder with Hagwood and Tipton and president of the firm’s Executive Committee. Michael oversees staff in both the Jackson, Mississippi, and Hillsborough, North Carolina, offices.A significant portion of Michael’s cases involves the defense of physicians, nurses, hospitals, nursing homes, assisted living facilities and other health care providers. He handles all phases of the litigation process – with a particular emphasis on trial – and has defended claims against nursing homes and assisted living facilities in Mississippi, Tennessee, Alabama and North Carolina. Michael also has extensive experience in the areas of complex defense litigation involving premises security/liability, insurance coverage and general insurance defense.