Making Your Case With Social Media in Litigation

"The internet's not written in pencil, Mark. It's written in ink."

In "The Social Network" -- admittedly a fictionalized account of the founding of Facebook -- this was a hard lesson for founder Mark Zuckerberg to learn.

And so it is with litigants and their lawyers. Every week, it seems, another opinion is issued in which social media evidence fundamentally changes the nature of a case. In September, for example, judges in personal injury cases in both New York and Pennsylvania compelled discovery of social media evidence that suggested plaintiffs were not nearly as incapacitated as they alleged. Romano v. Steelcase (2010); McMillen v. Hummingbird Speedway, Inc. (2010).

Then, in January, after winning a plaintiff's verdict in a gender discrimination case, a law firm was subpoenaed for social media posts containing information about time spent on the case, market rates, and skill in handling the instant litigation -- an attempt to undermine its request for fees. Muniz v. United Parcel Service, Inc. (2011). Although the court found the information irrelevant and declined to compel its production, the motion to quash likely was not a battle the law firm wanted -- or expected -- to fight.

And in February, in a case that shows online naiveté extends also to jurors, a Sacramento judge threatened to jail a juror if he didn't give Facebook permission to disclose messages he posted during the trial of several alleged gang members. According to an Associated Press report, the juror characterized the proceedings as "boring" in one post, and defense attorneys requested access to other posts to see if he was influenced by outside forces.

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Source: law.com
By: Leita Walker and Joel Schroeder