Social media is here to stay. You've heard the statistics: If Facebook were a country, it would be the third largest in the world, approaching 600 million users. Twitter users post 90 million "tweets" per day. What exploded from college dorm rooms is not just for teenagers and college students anymore. Social networking use among Internet users ages 50 and older nearly doubled from 2009 to 2010. The fastest growing demographic of social-media users are those over age 55. And social media is not just limited to Facebook, Twitter, YouTube, MySpace and LinkedIn. There are also hundreds of sites popular outside the U.S. such as hi5, RenRen and Orkut.
The impact of social media cannot be ignored. It is influencing not just how we communicate, but how lawyers litigate. But as is often the case, technological innovation outpaced the law, and for some time there has been a lack of guidance on the discoverability and use of social-media content in civil litigation. Recently, however, a growing number of court decisions and ethics opinions have addressed this issue. Below, we discuss some ways to use social media in litigation and, perhaps the bigger challenge, how to get ahold of it in the first place.
Social Media as Evidence
When it comes to the courtroom, social media is not just being used in family and criminal litigation. Its usage in commercial, intellectual property, employment, products liability and personal-injury cases is quickly growing. Courts and litigants across the country are increasingly relying on evidence secured from social-networking sites. Magistrates have offered to "friend" parties for the purpose of reviewing evidence in camera. All sorts of evidence discoverable through social media are easy to imagine. For example, evidence of actual confusion in a trademark case, or evidence of reputation in a libel case. It will likely not be long before a "SuperPoke" will form the basis of a sexual-harassment claim. (SuperPoke, for the uninitiated, is a Facebook application in which a user can send messages to their friends. Some more provocative "pokes" allow a user to "spank," "shower with" and "fling a thong at" somebody.)
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By: Joel Patrick Schroeder & Leita Walker