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The Perils of Social Media in Litigation

in Social Media in Litigation
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If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.
- Eric Schmidt, CEO of Google

E-mail, texts, MySpace, Facebook, Twitter, LinkedIn, Flickr, Yammer, blogs and other social media sites are now mainstream methods of communication.  Facebook claims it has over 800 million users.  Twitter claims its users post over 150 million tweets per day.  YouTube claims it uploads more video content each day than the three major networks have created in the last 60 years.  When a client is involved in litigation, law firms now hire employees whose only job is to find out what the other side is posting on the web.  You would be surprised at what gets uncovered.  Despite all the horror stories, people still maintain a false sense of privacy when posting to a site or emailing or texting a friend or co- worker.

While information on the web may not win or lose a case, it certainly can effect credibility.  When using social media platforms, be aware that the information you post is discoverable.   During litigation, a party’s emails and tweets and posts will be scrutinized Consider the Impact on a case if, the injury plaintiff who can’t work due to a knee injury posts pictures of his weekend hike.  Or the ‘at fault driver’ will post a video of himself at a bar with a drink in his hand only hours before the wreck. 

Information contained in digital mediums can constitute evidence and, therefore, cannot be detected or altered without serious consequences.  In July of this year, a Virginia lawyer agreed to a five year suspension of his license over a controversy in which he told his client to “clean up” his Facebook page.  The client lost his wife in a trucking accident.   Following her death, the client posted pictures of himself holding a beer and wearing a t-shirt that said “I love hot moms.”  Lawyers for the defense found the picture after it was deleted.  The client and lawyer were sanctioned $722,000.00 for violating ethics rules that govern candor toward the court, fairness to opposing party and counsel, and litigation misconduct.

Fried & Bonder’s standard retainer letter contains a warning about the perils of posting to social media sites during the course of litigation.  We assume our opposing counsel are investigating our clients.   We are doing the same.  The best practice is to refrain.  If you must post, consider the implication, if any, on the theories involved in your case, liability and damages.  Then consult your attorney for an opinion.        

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