Also, be sure to review the social media profiles of a claimant's spouse, children, friends, roommates, or other fact witnesses. Any one of these individuals may have and share incident-related or claimant-specific evidence that aids in the investigation.

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

The current consensus among courts is that there is no privacy interest in information uploaded to social media, regardless of the user's privacy settings. In Tompkins v. Detroit Metro. Airport, a Michigan federal judge explained that "material posted on a 'private' Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy." The principle underlying a claimant's lack of privacy over social media is that the information distributed was intended to be shared with someone.

Despite the lack of privacy interest, claims professionals must still be mindful of not violating ethical rules. Communicating with claimants through social media portals can be viewed as an illegal or inappropriate contact with an opposing party. Here are some guidelines to consider in developing a social media investigation strategy:

Publicly available information. When asked "whether a lawyer may visit the public website of an opposing party," in a 2005 ethics opinion, the Oregon Bar Association answered that the viewing of a claimant's publicly available social media information was ethical because it did not involve any communication, and analogized such conduct to being no different than "reading a magazine article or purchasing a book written by that adversary." Put differently, it is not unethical to passively view publicly available social media information. The bar associations and courts that have addressed this issue agree that such conduct does not run afoul of ethical guidelines.

Non-public information. Information that claimants place behind social media privacy settings restricts access to "friends," "subscribers," or "followers" already existing within their same shared social network. While it may be tempting to "friend" or "follow" a claimant, it is not advisable to do so for several reasons. First, doing so has the potential of violating ethical rules of some jurisdictions. In 2011, the San Diego County Bar Association advised that it is unethical to make an ex parte "friend" request to view the non-public portions of a represented party's social media profile. This is because becoming a claimant's "friend" requires making a direct request of (or contact with) the claimant.

The second reason to not "friend" a claimant concerns the timing of when an unrepresented claimant retains legal counsel. While there are jurisdictions that permit social media contact with an unrepresented claimant (e.g., Kentucky, New York, Oregon, and others), claims professionals are not always aware of when a claimant hires an attorney. Accordingly, what may be ethical behavior one day, may become unethical the next.

The last reason for not "friending" a claimant is the likely low value of the discoverable evidence from a claimant who accepts a claims professional's friend request. In the jurisdictions that allow social media contact with unrepresented parties, the legal professionals are required to disclose their true identity to the claimant (e.g., in Kentucky and New York) and also disclose the true purpose of the friendship request (e.g., in Pennsylvania and New Hampshire). Thus, identifying yourself (as a claims professional or attorney) and asking claimants to accept your friendship request because you would like to view their non-public information for purposes of investigating the veracity of their claim 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. When presented with this hypothetical scenario in 2009, the Philadelphia Bar Association advised that such a discovery method was inherently deceptive. It opined that such conduct was unethical because, in that situation, the legal professional omitted "a highly material fact, namely, that the third party who asks to be allowed access to the witness's pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of a witness."

Proper preservation of social media evidence

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

The high-tech method involves hiring vendors who specialize in retrieving and preserving publicly available social media information and its associated metadata. For instance, such vendors are not only able to determine when a particular photo was posted to a social media account, but they can also identify the specific device from which the photograph was uploaded. This method may be the optimal way to preserve "smoking gun" social media evidence in higher value claims and litigation.

Authenticating and getting social media admitted into evidence at trial

While courts weigh many factors in admitting social media evidence (relevance, hearsay, etc.), authentication is the biggest hurdle to admissibility. Authentication requires proof that the matter in question is what its proponent claims it to be.

The primary concern with social media evidence, as the Maryland Supreme Court said in Griffin v. State, is the relative ease that "anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password," combined with the fact that "a person observing the online profile of a user with whom the observer is unacquainted has no idea whether the profile is legitimate." In short, courts want to know if the account owner actually posted, tweeted or uploaded the social media evidence in question.

Given that courts want (and evidentiary rules require) proof that the social media content is genuine, here are some ways to authenticate social media evidence and get it admitted in court:

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

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

• Forensic inspection. Examine the claimant's hard drive or smartphone to determine if that device was used to create the social media profile or created the evidence in question.

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

The bottom line on social media investigations

Social media usage increases by the day. People are constantly finding new ways to share nearly every aspect of their lives online. For those professionals who are responsible for handling or defending claims, it is imperative to devise a social media investigation strategy to obtain evidence that just may "make or break" a claim in your favor. What is your strategy?