Facebook a ‘useful litigation tool’

A Queensland barrister says lawyers should “dig deep” into parties’ Facebook (FB) posts to access information useful in litigation.

Sean Farrell told the AILA Queensland insurance law intensive people were “astoundingly dis-inhibited” about posts. “The compulsion to record every thought, no matter how vacuous or humdrum, can be a motherload for litigators.”

FB pages were easily copied but proving authorship was “more difficult from a forensic perspective”. However, underlying metadata could be crucial in identifying authors.

He advised lawyers to search family and friends; witnesses named in claim forms; and ook for new connections.

“Keep looking for leads that may be useful in testing the other party’s case, including assertions about employment, social activities, and mobility.”

Mr Farrell cited a personal injury claim in which the plaintiff claimed he could not walk but posted about participating in a SES training weekend. Another claiming a disability payout was filmed participating in a power-lifting competition after posting about the contest on FB.

Mr Farrell said there was no impediment to using publicly available information, but a US court had ruled attempting to obtain discovery of a FB page was “fishing” when a lawyer could not verify that it contained relevant information.

“Ethical issues have not been tested in Australia, but you must use fair methods. Even [sending] a friend request could be unethical,” Mr Farrell said. It was unethical to counsel a client to change a FB page and courts had wide powers to order evidence be preserved.

A US attorney who advised his client to “clean up” her social media presence and deactivate her FB account was ordered to pay $US500,000 in sanctions and faced disbarment.

Qld Supreme Court Justice Roslyn Atkinson had ordered a woman to “friend” WorkCover so it could peruse, cope and potentially cross examine her on her FB material.

Mr Farrell said Justice Atkinson said FB was the equivalent of a personal diary and should be treated the same way for the purpose of disclosure. The judge was “not attracted to a submission that only relevant extracts be disclosed. The entirety of the evidence was required, including private messaging and comments”.

Mr Farrell said when a profile was “deleted”, FB simply flagged the account as deactivated. “The underlying data, including posts, photographs and so on are not actually deleted. This permits FB to re-activate the full account later, if the user wishes.

“This means the information likely still exists even if the user thinks it has been deleted. Formal deletion of the data requires a specific written request to FB. This is possible, and does occur, but is a fairly onerous process that most users are unlikely to be aware of or bothered to engage in.”

Mr Farrell said while social media evidence was now “an essential area of investigation” for insurance lawyers, it was not without difficulty, particularly if formal proof was needed.

His tips were:
1. Undertake social media investigations as soon as a claim is notified. Once information has been deleted it is generally too late.

2. If anything useful is found, copy it immediately. Ensure the copies are exhaustive and not selective.

3. Take careful file notes of the investigation and capture process, including when the information was discovered, URLs at which it was found, who discovered and copied it, and the search terms that located it.

4. Consider early how the evidence might be proved if the other party denies ownership. Is the underlying metadata required? If so, how can it be obtained?

5. If the material is extensive or otherwise complex, consider engaging a litigation support expert to capture and analyse the evidence.

6. If the evidence requires specialised software to download and compile it, a certificate under the Evidence Act 1977 may be expedient to create a presumption a computer process has accurately produced a statement, which will then be admissible as evidence of the fact contained in it.

7. If privacy settings are activated and pages cannot be viewed, press the plaintiff for disclosure. Consider a letter cautioning them not to interfere with the material.

8. If disclosure becomes an issue, consider how the pleadings might be drawn to avoid any argument the evidence does not address an issue squarely raised in them.

9. Consider whether material should be disclosed and whether an order excusing disclosure is required.

Mr Farrell warned that people lie on social media. “People are not only indiscrete in that virtual world. They exaggerate, embellish and even entirely fabricate aspects of their lives for the purposes of self-aggrandisement.”

A 2013 UK survey of 2,000 women found one in four consciously misrepresented their lives online at least once a month to impress their friends and make their lives seem more interesting.

“Why the researchers focused on women I cannot say, but I have no doubt the male population are at least as susceptible to this temptation,” Mr Farrell said.