Within the last fifteen years, aspects of American culture have been significantly
altered by the widespread use of social media. What initially began as
an obscure activity engaged in primarily by young, tech savvy adolescents
and college-aged kids has now transformed into a multi-billion dollar
industry utilized by massive multi-national financial conglomerates, world
religious denominations, and the most powerful nations on earth. The remarkable
proliferation in the use of social media has impacted all facets of society.
The sheer number of social media users is staggering. Consider the following:
Facebook (approximately 1 Billion monthly users); Twitter (approximately
500 Million users); Google-Plus (approximately 340 Million users); and
LinkedIn (approximately 200 Million users).
In particular, American culture has been transformed by the new technology.
Behavior that before would have remained confidential and private is now
– either intentionally or not – liable to being transmitted
to millions of viewers in an instant. Interestingly, a fascinating byproduct
of social media use has become apparent over the past few years. It appears
that large numbers of social media users, persons otherwise private and
discreet with matters pertaining to their personal lives, have had various
posts disseminated via social media. Some of these people have had unfavorable
posts made without their consent or knowledge. For example, someone casually
takes a video or picture of that depicts the social media user in an unflattering
light and without considering the consequences, posts the information
where all the person’s friends receive it. Even more commonly, the
social media user himself or herself will post the unflatteringly material
themselves. If this occurs when the social media user is in the midst
of litigation, adverse, even case killing consequences can result.
It is unsurprising that many litigators have seized on this recent phenomenon
and been able to transform what otherwise would have been lost causes
into courtroom victories. Many a good case has been completely torpedoed
by a senseless and stupid post by a thoughtless client. Obviously, this
fact is terrifying for many litigators. The prospect of investing tens,
if not hundreds of thousands of dollars of costs into a worthwhile case
only to have it undone by a prejudicial post keeps many trial lawyers
awake at night.
An entire cottage industry has come into existence thanks to the problems
posed by social media and its potential effect on litigation. Seminars,
publications, webinars, and in-house law firm training is now devoted
to this issue. It is not going away; in fact, the impact of social media
on litigation increases each passing year. The problems and challenges
presented by this recent innovation have also been felt in the transformation
of evidentiary rules and statutes. A whole new body of case law is developing
across the country in response to the social media issues presenting themselves
in various cases nationwide.
Even solutions are not clear-cut. Rules pertaining to spoliation or preservation
of evidence, which are applicable to virtually every case, also make the
issue difficult. What can a litigant simply delete versus what must he
preserve is not necessarily easily answered. The only best practice that
is perfectly clear is the absolute necessity to have each and every client
completely and thoroughly disclose his or her participation in social
media. All public posts and other matters pertaining to the client, which
have been disseminated via social media, must be discovered and considered
in conjunction with the case. Is this discoverable? Can it legally and
ethically be deleted? And, must I preserve this, are just some of the
considerations which must be made. If it is out there, the safe assumption
is that the other side is aware of it. Always ensure that each client
is thoroughly debriefed in regards to social media. To do otherwise is
to add unnecessary risk to the success of the case.