According to recent estimates, people send 31.25 millionmessages on Facebook; send 347,222 tweets on Twitter; view 17,361profiles on LinkedIn; post 48,611 pictures on Instagram; upload 300hours of video on YouTube; and upload 1,041,666 video loops on Vineevery minute. Given that there are 1,440 minutes in a day, theamount of content shared in the social media universe isastonishing. If investigating a claimant's social media sites isnot a routine part of your claims or litigation defense strategy,you are overlooking scores of potentially valuable evidence.

The best social media evidence is discoveredearly

There are countless ways in which a claimant's social mediaprofiles, activities or updates can be disastrous to his or herclaim. Claimants' counsel are keenly aware of the real dangersocial media poses to potential claims. It is now common practicefor counsel to instruct claimants to limit social media use,increase privacy settings to the highest levels, decline any new"friend" requests, or simply delete the entire social mediaexistence.

Faced with the possibility of an inactive, non-public, ordeleted social media profile, the best time for claimsprofessionals to gather beneficial evidence is as early as possibleafter becoming aware of a claim. This early investigation strategyincreases the likelihood of capturing information showing aclaimant at baseline levels, depicting the existence or severity ofpreexisting conditions or property damage, or sharing immediatepost-incident activities that may belie future allegations. It is agood practice to continue monitoring a claimant's information overtime to track how any favorable evidence changes throughout theclaims process and litigation.

Also, be sure to review the social media profiles of aclaimant's spouse, children, friends, roommates, or other factwitnesses. Any one of these individuals may have and shareincident-related or claimant-specific evidence that aids in theinvestigation.

Look, but don't touch: Ethical guidelines forinvestigating social media

The current consensus among courts is that there is no privacyinterest in information uploaded to social media, regardless of theuser's privacy settings. In Tompkins v. Detroit Metro.Airport, a Michigan federal judge explained that "materialposted on a 'private' Facebook page, that is accessible to aselected group of recipients but not available for viewing by thegeneral public, is generally not privileged, nor is it protected bycommon law or civil law notions of privacy." The principleunderlying a claimant's lack of privacy over social media is thatthe information distributed was intended to beshared with someone.

Despite the lack of privacy interest, claims professionals muststill be mindful of not violating ethical rules. Communicating withclaimants through social media portals can be viewed as an illegalor inappropriate contact with an opposing party. Here are someguidelines to consider in developing a social media investigationstrategy:

Publicly available information. Whenasked "whether a lawyer may visit the public website of an opposingparty," in a 2005 ethics opinion, the Oregon Bar Associationanswered that the viewing of a claimant's publicly available socialmedia information was ethical because it did not involve anycommunication, and analogized such conduct to being no differentthan "reading a magazine article or purchasing a book written bythat adversary." Put differently, it is not unethical to passivelyview publicly available social media information. The barassociations and courts that have addressed this issue agree thatsuch conduct does not run afoul of ethical guidelines.

Non-public information. Informationthat claimants place behind social media privacy settings restrictsaccess to "friends," "subscribers," or "followers" already existingwithin their same shared social network. While it may be temptingto "friend" or "follow" a claimant, it is not advisable to do sofor several reasons. First, doing so has the potential of violatingethical rules of some jurisdictions. In 2011, the San Diego CountyBar Association advised that it is unethical to make an exparte "friend" request to view the non-public portions of arepresented party's social media profile. This is because becominga claimant's "friend" requires making a direct request of (orcontact with) the claimant.

The second reason to not "friend" a claimant concerns the timingof when an unrepresented claimant retains legal counsel. Whilethere are jurisdictions that permit social media contact with anunrepresented claimant (e.g., Kentucky, New York, Oregon, andothers), claims professionals are not always aware of when aclaimant hires an attorney. Accordingly, what may be ethicalbehavior one day, may become unethical the next.

The last reason for not "friending" a claimant is the likely lowvalue of the discoverable evidence from a claimant who accepts aclaims professional's friend request. In the jurisdictions thatallow social media contact with unrepresented parties, the legalprofessionals are required to disclose their true identity to theclaimant (e.g., in Kentucky and New York) and also disclose thetrue purpose of the friendship request (e.g., in Pennsylvania andNew Hampshire). Thus, identifying yourself (as a claimsprofessional or attorney) and asking claimants to accept yourfriendship request because you would like to view their non-publicinformation for purposes of investigating the veracity of theirclaim is not likely to provide much, if any, valuable evidence.

Nor is it good practice to hire a third-party to "friend"claimants to retrieve non-public social media information. Whenpresented with this hypothetical scenario in 2009, the PhiladelphiaBar Association advised that such a discovery method was inherentlydeceptive. It opined that such conduct was unethical because, inthat situation, the legal professional omitted "a highly materialfact, namely, that the third party who asks to be allowed access tothe witness's pages is doing so only because he or she is intent onobtaining information and sharing it with a lawyer for use in alawsuit to impeach the testimony of a witness."

Proper preservation of social mediaevidence

Having found some valuable evidence on the claimant's socialmedia profile(s), the next step is to preserve this information forfuture use. Such evidence may be secured in a variety of waysranging from simple to high-tech. The simplest way is to print orsave screenshots of the social media content. This method,unfortunately, does not include any of the "metadata" — or uniquedigital DNA — associated with the social media information.

The high-tech method involves hiring vendors who specialize inretrieving and preserving publicly available social mediainformation and its associated metadata. For instance, such vendorsare not only able to determine when a particular photo was postedto a social media account, but they can also identify the specificdevice from which the photograph was uploaded. This method may bethe optimal way to preserve "smoking gun" social media evidence inhigher value claims and litigation.

Authenticating and getting social media admitted intoevidence at trial

While courts weigh many factors in admitting social mediaevidence (relevance, hearsay, etc.), authentication is the biggesthurdle to admissibility. Authentication requires proof that thematter in question is what its proponent claims it to be.

The primary concern with social media evidence, as the MarylandSupreme Court said in Griffin v. State, is the relativeease that "anyone can create a fictitious account and masqueradeunder another person's name or can gain access to another's accountby obtaining the user's username and password," combined with thefact that "a person observing the online profile of a user withwhom the observer is unacquainted has no idea whether the profileis legitimate." In short, courts want to know if the account owneractually posted, tweeted or uploaded the social media evidence inquestion.

Given that courts want (and evidentiary rules require) proofthat the social media content is genuine, here are some ways toauthenticate social media evidence and get it admitted incourt:

• Written discovery. Propound Requests forAdmission that require claimants to admit or deny that they createdor posted the social media at issue.

• Deposition testimony. During depositions,claimants can be asked if they created the social media profile andposted the picture or statement in question.

• Forensic inspection. Examine the claimant'shard drive or smartphone to determine if that device was used tocreate the social media profile or created the evidence inquestion.

• Stipulation. Simply ask opposing counsel tostipulate to the authenticity of the social media evidence soughtto be introduced at trial — the answer may, surprisingly, be"yes."

The bottom line on social mediainvestigations

Social media usage increases by the day. People are constantlyfinding new ways to share nearly every aspect of their livesonline. For those professionals who are responsible for handling ordefending claims, it is imperative to devise a social mediainvestigation strategy to obtain evidence that just may "make orbreak" a claim in your favor. What is your strategy?