Social Media and 21st Century Litigation

Posted At: March 4, 2013 1:27 P.M.
by Casey Rogers

In today’s digitally centric society, it comes as no surprise that user data from social media outlets has found a unique niche in the modern judicial process as well as become a driving force in both criminal and civil litigation. Facebook, Twitter, LinkedIn, Pinterest, Instagram, blogs and other social media venues can affect the contemporary trial structure just as they affect the information and updates we receive in our day-to-day lives.

Just a few years ago, litigators placed ultimate value in finding handwritten notes, receipts, diaries and other concrete communications to translate motives and intent in cases. But in today’s new media age, cyber fingerprints and an in-depth online presence serve as a treasure trove for litigation attorneys attempting to frame a witness or case. Any social media interaction can easily be tracked, traced and dissected to tell stories through a unique lens. These outlets of digital communication now serve as evidence within trials, communication tools within courtrooms and even play an integral role in jury selection.

J. Paul Zimmerman, a former graduate of The University of Alabama, leads the Electronic Discovery Practice Group at Christian & Small LLPof Birmingham, Ala. Zimmerman places a high level of priority on electronic discovery in modern litigation due to the largely uncharted legal frontier concerning the practice in many jurisdictions and because related technologies are constantly changing and evolving.

“Thirty or forty years ago, lawyers would go to large warehouses where evidence was stored and sift through boxes upon boxes of papers and other things that led to facts serving as evidence,” Zimmerman said.

Today, finding evidence can be as simple as researching digital information on a jump drive and can provoke the same, or better, results. While electronic discovery places a large emphasis on the digital storage of evidence, it also involves discoveries made using social media outlets.

Paul W. Grimm, United States District Judge for the District of Maryland, said that to understand the true relevance of social media in litigation, one should simply look at current popularity of social media in the lives of Americans. As the popularity of social media continues to rise, so will its relevance in litigation and the judicial process.

Because many Americans have multiple social media accounts on a variety of channels, digital evidence can easily be found. The complexity of evidence found using these outlets could vary greatly. For instance, if a defendant claims to be fully disabled and a prosecutor discovers pictures on Facebook proving the opposite to a jury, then those Facebook pictures can help establish or shatter the credibility of an individual. Or in more complex situations, evidence found using these outlets can destroy alibis, completely changing the outcome of civil and criminal cases.

Roe Frazer is the managing executive of digital marketing company, Digome LLC, as well as a litigation and ediscovery technology company, Cicayda LLC, both based in Nashville, Tenn. “Social media is public by nature, with very few exceptions,” Frazer said, “So, today just about anything is fair game for litigators.”

Frazer agreed with Zimmerman that a few years ago, written diaries seemed to be the “Holy Grail” of discoveries for litigators. “Today, social media is really no different from a diary” he said.

According to both Zimmerman and Frazer, it is incredibly important for litigators to carefully distinguish what digital discoveries can actually be used as evidence. Zimmerman said they should ensure electronic evidence is authentic and relevant to issues specifically within the case. Employing these tactics when using social media in order to find legitimate evidence can cut through the clutter of the technological world.

While discussing the popularity of social media, Zimmerman said that relevant courtroom trends change just as the popularity of certain social media channels changes. All pictures posted on social media contain “geo-data,” or geographic information that can be used to pinpoint the specific geographical address of the picture. This data can be incredibly useful in judicial litigation to establish credibility, verify information and collect evidence. Instagram, the popular photo sharing app, is currently producing large amounts of evidence for litigators due to the hoards of information it collects from its millions of users.

Grimm said to think about how modern Americans communicate with one another. Americans talk face to face — and some may still write letters — but most people text, send emails or tweet to each other and more. Facebook and Twitter are now used in mainstream commerce, government affairs and the entertainment industry. An easy example would be the 2013 Super Bowl, with an overwhelming majority of the commercials and sponsors including hashtags, promotional codes and giveaways to promote and communicate messages to the audience.

“Beyond social media, take iPhones for example; just look at a person’s top five apps,” said Frazer. “All kinds of evidence about a person’s daily lifestyle can be found by looking at their favorite apps.”

Social media also reveals a lot the daily lifestyles of users. One can see users’ friends, what they are interested in and so much more.

There are several major cases that have produced important developments in establishing law that specifically targets social media. In the Food and Drug Administration’s citation of Novartis for Facebook content that lacked required warnings and disclaimers, the case illustrates that heavily regulated industries face many additional burdens and risks associated with social media marketing campaigns.

Another example is the National Labor Relations Board’s assertion of jurisdiction over protected information on Facebook, even when no union is present. Further, Supreme Court decisions such as the state of New Jersey Supreme Court’s decision in Stengart v. Loving Care Agency, Inc. involving the use and regulation of employer-provided email systems.

Other cases, such as St. Louis Cardinals Manager Tony LaRussa suing an unknown party for registering a negative Twitter account under his name, prove that trademark-infringement cyber-squatting and online privacy violations are pertinent issues facing our legal system.

Although social media can seem harmless and fun, its popularity has made it necessary and lucrative in today’s legal system. To fully grasp the wide popularity and pertinence of social media in the lives of today’s people, it is important to understand that communication outlets are now the new frontier for telling the stories of individuals who use them.