#litigationimpact: The digital frontier of litigation and the explosion of social media

Social media activity (and inactivity) is both a sword and a shield

Alert the press — the worlds of social media and litigation have officially collided. Social media has taken litigation on the same zany ride as it has traditional means of communication, employee recruitment and management, and brand marketing and advertising. The purpose of social media is to allow individuals and businesses alike to connect with others, build relationships, share information, and contribute to discussions.

Today, these discussions and connections intersect with the world of litigation in many contexts. Employees are suing former employers who used social media posts as the reason for termination of employment. Individuals are using posts and activities in divorce and custody cases. Intellectual property cases are won or lost on the information divulged on or violations found on social media sites. While the impact of social media on litigation was slow to start, it is now being felt even by businesses and individuals who are not actively in the social media game. While they may not realize it, they DO have a presence on social media — they are just not crafting or in control of their own images and messages.

Not so long ago, the mother lode of relevant and potentially smoking gun type evidence was found in emails. Now, that treasure trove is seen in text messaging, instant messaging, blog sites, and other activity on the internet. In litigation, because there is so much that can be learned through a person or a company’s social media posts, they have become the subject of discovery requests, witness testimony in depositions and hearings, and the investigation of facts underlying claims and cases. Social media activity (and inactivity) is both a sword and a shield. Below are some places where the effects of the collision of worlds have materialized.

Pre-litigation

There are several steps that in-house counsel can take to be prepared for when the inevitable claim arises.

  1. Once you have a handle on the business client’s approach and philosophy regarding social media, audit your company’s social media presence that the company or its vendor controls.
  2. Develop a record retention schedule for those documents.
  3. Review the terms of service and contractual provisions for each site where you have an active presence.
  4. Ensure the privacy settings are appropriate for your company’s usage, while being aware that with “retweets” and “shares” those settings may ultimately be nebulous.
  5. Develop, implement and train on a social media policy (and update any existing policies to apply to social media context) including the expectations and consequences for violations.
  6. If your business is multi-national, become intimately educated on what your business clients can and cannot do with social media cross-borders (e.g. EU Privacy laws and the U.K. Anti-Bribery Act).
  7. Counsel your business clients on friending employees, clients and customers. Attorneys themselves should use caution when connecting to clients, judges, or other individuals where the lawyer’s impartiality or professionalism could be questioned.
  8. Last, counsel your business clients on their own personal posts and disclosures as regulators (e.g. FTC, SEC) and shareholders are watching.

Once the claim is received

Searches of social media have become an early step in every investigation. Searching online public information is akin to searching newspapers and other print media in the “old days.” Once the legal hold order has been issued, including to the persons responsible for the social media sites/platforms, counsel needs to immediately counsel their clients on the spoliation or destruction of evidence. More specifically, counsel needs to be sure that their clients do not “clean up” their social media sites or delete accounts. Counsel should advise their clients about how they should approach future posts and activity.

During litigation

Social media has become a very relevant topic for discovery responses in all types of litigation. The key to all discovery requests is to ensure that they remain tied to the subject matter and do not spiral into a fishing expedition. For example, the posts of an individual being pursued by a former employer for violations of a non-solicitation agreement are relevant to show the scope of the person’s activities. In a wage and hour case, the posts — all posts — of an employee suing its employer for unpaid wages or overtime are relevant to determine whether the person was spending his/her working time on social media or actually working.

In cases like these, social media sites are veritable cornucopias of information about a person’s conduct, activities, and personal data. The use of this information in questioning witnesses has become common practice. Often, witnesses or parties have admitted a fact on a social media site that kills their position or claims. It can even be used as impeachment material. Social media is exceptionally useful when trying to find witnesses or even parties who are avoiding service of process. In trial preparation, social media data has proven useful in gathering information about witnesses and jurors (be careful not to overstep, though).

Conceivable hazards

The profound proliferation of social media has provided numerous new avenues for lawyers to use in litigation; however, these roads have potholes that counsel must navigate.

  1. Clients and counsel need to be mindful not to post anything that could waive the attorney-client privilege.
  2. While the use of social media data can be significant when questioning witnesses, the authentication process remains unchartered.
  3. Counsel need to remain cautious in conducting searches so as not to run afoul of the particular court’s or jurisdiction’s rules when obtaining or using that information.
  4. There can be substantial consequences if record retention schedules are not followed or if the individuals responsible for retention do not know how to retain the fluid social media information and unintentional spoliation occurs.
  5. During trial, juror use of social media to do further research or to share the happenings in case could damage the entire trial process.

With social media’s borderless reach, almost anything is fair game, so long as it is found and used within the bounds of the procedural rules and of attorney ethics and professionalism. Essentially, the rules of the litigation and discovery game have not changed; it is simply played on an additional gameboard whose pieces have changed tremendously and continue to do so at a rapid pace. Unfortunately, this is not a “once and done” process or issue. It continues to evolve and tomorrow, there will be a new frontier, maybe the Grid itself.

Contributing Author

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Amy Burton Loggins

Amy Burton Loggins is a member of Taylor English Duma’s Employment, Labor & Immigration practice. She has a broad-based range of experience handling everything from...

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