Tuesday, July 22, 2014

Social Media Basics for Litigation

This blog post is derived from a recent article written by from Katherine Bandy Weber, for Texas Lawyer.

Chances are in the last few years you have noticed an uptick in the number of clients heading into litigation with social media considerations from the clients whether professional or personal.  In fact the social media universe is expanding with Twitter revealing a staggering 200 million active daily users, 500 million average daily tweets and 2012 revenue of $316.9 million. Facebook boats 1.27 billion monthly active users and its estimated 2013 revenues totaled $7.82 billion.

With that kind of firepower you can bet social media has a reverberating effect that reaches all the way into a courtroom.  So what should litigators know to protect their clients and themselves from the pitfalls of engaging with others online? 

First, lawyers should warn clients of the spoliation trap and remember, disable, don't delete.  Lawyers can advise clients to take down their Facebook pages but they conversely should not advise them to take down content. A preservation letter should even be considered in some cases to be sent to opposing parties that covers social media.

During the4 fact-investigation phase, attorney s should carefully plan a social media search, tailored to the demographics of the individual client and opposing party. An increasing number of people have Facebook accounts but may spend the majority of their time in Instagram .  In contrast,  searching Linkedin for admissions form a CEO or a potential witness may yielfd more results than a You Tube or MySpace search.

Social media also is playing an increasingly prominent role in jury misconduct, with jurors using Facebook to take a poll on how to decide facts, conducting independent research,and tweeting previews of the verdict despite admonishments form the judge to stop.  In this digital age, social media is as important to litigation as email, medical records and the proverbial smoking gun itself.

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