by Kerin E. Coughlin
Social media – the Internet-based communication channels such as Facebook, Twitter, and infinite blogs, through which users keep in touch, learn about news, and express opinions – has become ubiquitous in our daily lives. In recent years, social media has also become increasingly present in litigation. It can provide evidence of illegal conduct; facilitate notice to class members; offer uniquely candid consumer perceptions; among many more uses surely yet to be discovered.
This article addresses these and other ways social media has been and can be used in class litigation. First, it provides some history and data on social media. Next, it discusses specific uses of social media, including class cases in which it has been used. Finally, it identifies issues to consider when using social media in litigation.
Social Media Background
Social media, in its basic form, has existed for about twenty years. The first website enabling users to upload profiles and become virtual “friends,” called “Six Degrees,” started in 1997. Social media as we know it today – Facebook, Twitter, etc. – emerged in the early 2000s. Since then, social media has grown rapidly. In 2005 only five percent of American adults used it; by 2016, 69 percent did. By January 2017, more than a third of the world's population actively used social media. Every sixty seconds, users generate 3.3 million Facebook posts; 448,800 Twitter tweets; 66,000 Instagram photos; and 1,400 blog posts. All this communication provides fertile ground for use in litigation.
Uses of Social Media in Class Action Cases
Evidence of Conduct
Statements made on social media can indicate illegal conduct, and thus provide the factual basis for a class action case. In In Re: Disposable Contact Lens Antitrust Litigation,  a class of consumers sued contact lens manufacturers and distributors for an alleged conspiracy to fix prices. In June 2016, the Middle District of Florida denied defendants’ motion to dismiss, largely based on allegations of statements on social media. For example, plaintiffs quoted posts by eye care professionals describing defendant Alcon’s request that they provide written consent to prices, and stating that the eye care professionals “inform[ed] Alcon’s sales representatives about potential violations and request[ed] that Alcon take action.” The court held that these posts sufficiently demonstrated conspiracy, and denied defendants’ motion to dismiss. 
Social media can also be an effective means of providing notice to class members. In Pollard v. Remington Arms, a 2013 deceptive trade practices class action, the court described social media as a “lynchpin” of the ultimately-approved settlement notice plan. The initial notice plan consisted primarily of traditional methods such as U.S. Mail and print ads, plus just “some Facebook advertising.” It resulted in “an appalling claims rate,” so the court ordered the parties to develop a supplemental plan. The inverse of the initial plan, the supplement had as its main prong “a targeted social media campaign,” and more traditional forms of notice were secondary. The court approved the supplemental plan. In its decision granting final approval of the settlement, it extolled the use of social media to provide notice:
One of the lynchpins of the supplemental notice utilized by the parties was their targeted social media campaign. Through this method of notice, the notice reached more than four million individuals, and the advertisements were clicked more than 375,000 times. Given the popularity of social media in the United States, the use of targeted social media to notify class members was yet another reasonable component of the notice plan, especially when combined with all other forms and methods of notice utilized in this matter.
The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has also acknowledged the benefits of electronic notice, in its proposed amendments to Federal Rule of Civil Procedure 23. Currently, Rule 23(c)(2)(B) requires a class certified under Rule 23(b)(3) to be provided “the best notice that is practicable under the circumstances” – but does not identify specific acceptable methods of notice. Since the Supreme Court’s 1974 decision in Eisen v. Carlisle & Jacquelin, courts have traditionally interpreted the rule to require at least notice by U.S. mail. Now, the Committee proposes clarifying that “[t]he notice may be by United States mail, electronic means, or other appropriate means.” In its note explaining the amendment, the Committee states: “other forms of communication [besides U.S. mail] may be more reliable and important to many. Courts and counsel have begun to employ new technology to make notice more effective, and sometimes less costly. Because there is no reason to expect that technological change will halt soon, courts giving notice under this rule should consider current technology . . . .” If approved, the proposed amendment takes effect December 1, 2018.
Social media captures the raw, contemporaneous thoughts of consumers that can be critical to commercial litigation, and that are unavailable in such candid form in any other context. Traditionally, such data has been sought through consumer surveys. But as the District of Delaware observed in QVC Inc. v. Your Vitamins Inc., a 2010 false advertising case (not class), social media may in fact “be more reliable than broad-based surveys, insofar as they represent direct feedback from consumers specifically interested in the product(s) [or services or events] at issue[.]” For this reason, social media can be uniquely useful, not only as evidence to be offered in litigation on such issues as consumer perceptions of products, brands, and markets, or how they have been affected by competitive conduct (assuming authentication and other evidentiary requirements can be met, as discussed below), but also for preliminary assessment of a potential class claim, by running searches to provide a snapshot of when, where, how often, and to what effect conduct has occurred, thus whether a class claim is viable. Similarly, social media can be used to demonstrate or refute the satisfaction of class certification requirements, such as numerosity and commonality.
Issues to Consider When Using Social Media in Litigation
Social Media as a Supplement
At least until courts gain more comfort with the use of social media in litigation, it should be used as a supplement to, rather than a replacement for, more traditional methods. In Pollard v. Remington Arms, after the court praised social media as a “lynchpin” of the class notice plan, it reaffirmed the importance of including more traditional forms of notice: “[T]he use of targeted social media to notify class members was yet another reasonable component of the notice plan, especially when combined with all other forms and methods of notice utilized in this matter.” Likewise, the Committee on Rules of Practice and Procedure cautions, in its proposed amendment to Rule 23, “to keep in mind that a significant portion of class members in certain cases may have limited or no access to email or the Internet. Instead of preferring any one means of notice, therefore, courts and counsel should focus on the means most likely to be effective in the case before the court.”
In QVC, after the court recognized the potentially superior reliability of social media versus consumer surveys, it found that the social media evidence offered there – about 10 blog posts – failed to demonstrate confusion. The court appeared to base this decision on the paucity of the posts (only about 10), plus the fact that they were the sole evidence on confusion, noting: “The court is not presented with expert testimony or consumer surveys at this time.” Thus, the posts may have sufficed if offered in conjunction with expert or survey evidence.
Possibly due to the relative novelty of social media in commercial litigation, courts have expressed skepticism regarding its authenticity. In its 2011 decision affirming QVC, the Third Circuit noted: “The use of false identities in Internet forums is now a well-known tactic for attacking corporate rivals . . . . [E]ven if a poster is genuine and making a comment in good faith, whether he or she would fall in to the universe of consumers whose opinions are relevant (i.e., those who are or potentially might be purchasers of the products in question) often cannot be known.” Similarly, in Moroccanoil, Inc. v. Marc Anthony Cosmetics, Inc., a 2014 trademark infringement case, the Central District of California rejected the authentication of screen shots from Facebook, warning: “Anyone can put anything on the internet.”
More recently, however – at least in criminal contexts – courts have been more willing to find social media evidence properly authenticated, using the same the same methods available for traditional evidence. In State v. Hannah, a 2016 New Jersey case, the defendant appealed the admission of a Twitter post (tweet) that included her picture and Twitter “handle,” and was substantively consistent with the evidence in the case, but that she claimed she did not write.  Her argument echoed the skepticism cited above, that because of “the potential for abuse and manipulation of a social networking site . . . images from such a site require greater scrutiny than letters and other paper records.” The appellate court rejected this argument, explaining:
[A]lthough rapidly developing electronic communications technology often presents new and protean issues with respect to the admissibility of electronically generated, transmitted and/or stored information, including information found on social networking web sites, the rules of evidence already in place for determining authenticity are at least generally adequate to the task. . . . Defendant argues a tweet can be easily forged, but so can a letter or any other kind of writing. The simple fact that a tweet is created on the Internet does not set it apart from other writings. Accordingly, we apply our traditional rules of authentication[.]
Under those rules, the tweet was deemed properly authenticated.
Similarly, in United States v. Browne, the defendant appealed the admission of Facebook “chats” between him and his victims, on the ground that they were not properly authenticated because no witness identified them on the stand. The Third Circuit rejected this argument, finding the chats properly authenticated through the “conventional” means of extrinsic evidence, including a certificate of authenticity provided by Facebook. Like the New Jersey court, the Third Circuit acknowledged the “challenges” of social media evidence, including “the great ease with which a social media account may be falsified[.]” However, it held that “it is no less proper to consider a wide range of evidence for the authentication of social media records than it is for more traditional documentary evidence[,]” citing several Courts of Appeals – including the Second Circuit – that agree.
Social media can be invaluable as a litigation tool, but it is only as valuable as the care and efficacy with which it is collected and used. To ensure maximum integrity and reliability, it is best to conduct those processes under the guidance of an experienced social media expert.
For example, it is critical to obtain a “clean” pool of evidence, that excludes irrelevant and unauthentic posts, such as bot and commercial posts. This can be achieved through custom algorithms and refined metrics that provide combined analyses of author, posting behavior, and content. In addition, relevant posts must be captured and stored appropriately, with a clear chain of custody and other indicia of authenticity, so they will available for litigation and admissibility can be demonstrated. Finally, because social media tends to take a casual, conversational tone, it is critical to accurately determine an author’s substantive intent. While automated tools are available for this purpose, the most reliable method is manual review by an experienced analyst, who reads posts in context to identify sarcasm, humor, slang, misspellings, and synonyms that can generate false positives or mislead sentiment analysis algorithms.
Social media is here to stay – not just in our daily lives, but also, it appears, in litigation. Its potential uses are endless, as are the legal issues it is likely to raise. As courts and parties navigate this new territory, the rules of the road will continue to develop. As that occurs, it is critical for parties to take all available steps to ensure they use these new forms as effectively and reliably as possible.
Kerin E. Coughlin is an Assistant Professor of Law and Paralegal Studies at the City University of New York, NYC College of Technology, and a former antitrust and commercial litigator. She is also a Senior Consultant with social media analyst firm Voluble Insights, a division of Global Business Experts Group, a business litigation consultant.
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 215 F. Supp. 3d 1272 (M.D. Fl. 2016).
 Id. at 1284.
 Id. at 1306; cf. Nestle Purina Petcare Co. v. Blue Buffalo Co. Ltd., No. 4:14 CV 859 RWS, 2015 WL 1782661 (E.D. Mo. Apr. 20, 2015) (Purina’s posts on Facebook and Twitter about competitor Blue Buffalo supported Blue Buffalo’s false advertising and defamation claims).
 Case No. 4:13-CV-00086-ODS, 2017 WL 991071 (W.D. Mo. Mar. 14, 2017).
 Id. at *11.
 Id. at *2 (emphasis added).
 Id. at *2, *7.
 Id. at *7.
 Id. at *11 (emphasis added; citation to record omitted).
 Comm. on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure (Aug. 2016), available at http://www.uscourts.gov/sites/default/files/preliminary_draft_2016-07-01.pdf (“Proposed amendments”).
 Proposed amendments, Fed. R. Civ. P. 23 note at 218.
 Id. at 211-12 (emphasis added).
 Id. at 218-19 (emphasis added); see also Elizabeth M.C. Scheibel, #rule23 #classaction #notice, 42 Mitchell Hamline L. Rev. 1331 (2016) (arguing that Rule 23(c)(2)(B) and constitutional due process require use of social media and other newer communication technology to provide notice in most cases).
 Proposed amendments at 4.
 714 F. Supp. 2d 291, 302 n.19 (D. Del. 2010), aff’d, 439 Fed. Appx. 165 (3d Cir. 2011).
 Pollard, 2017 WL 991071 at *11.
 Proposed amendments, Fed. R. Civ. P. 23 note at 219.
 QVC, 714 F. Supp. 2d at 301-02.
 Id. at 301.
 QVC Inc. v. Your Vitamins Inc., 439 Fed. Appx. 165, 168-69 (3d Cir. 2011) (citations omitted).
 57 F. Supp. 3d 1203, 1213 n.5 (C.D. Cal. 2014) (quoting Internet Specialties W., Inc. v. ISPWest, CV 05–3296 FMC AJWX, 2006 WL 4568796 (C.D. Cal. Sept. 19, 2006)).
 State v. Hannah, 151 A.3d 99 (N.J. Super. Ct. 2016).
 Id. at 105 (quoting Griffin v. State, 419 Md. 343, 423-24 (2011)) (internal quotation marks and alterations omitted).
 Id. at 106 (quoting Tienda v. State, 358 S.W.3d 663, 638-39 (Tex. Crim. App. 2012), and citing N.J.R.E. 901).
 Id. at 107 (citing “[o]ther courts [that] have admitted tweets applying their similar authentication standard”).
 834 F.3d 403 (3d Cir. 2016).
 Id. at 411-12 (citing Fed. R. Evid. 901(b)), 413-14 (describing extrinsic evidence).
 Id. at 412.
 Id. at 413 (citing, inter alia, United States v. Vayner, 769 F.3d 125 (2d Cir. 2014)).
social media as a litigation tool.pdf