Social Media and Litigation

People post a lot of interesting material online. I’ve started to incorporate some social media discovery requests after reading Browning’s Social Media and Litigation Practice Guide and handling two cases where social media posts packed a visible punch.

The first case involved a trial where the plaintiff posted a bunch of Instagram pics and Vine videos of himself. In the videos and pics, the guy smoked pot, popped pills, and played with pistols. The plaintiff’s own posts on social media made it easy for us to depict the plaintiff as a dangerous malingerer. The plaintiff had a weak case to begin with and his unforced errors didn’t help him.

The second case involved a mediation where the plaintiff used a defendant security company’s YouTube videos to show how the security company was a bunch of reckless, wannabe cops. The video dovetailed nicely with the plaintiff’s trial themes.I don’t know whether the YouTube videos had a direct impact on the settlement of the case. Obviously, the videos didn’t hurt the plaintiff in negotiations.

There’s gold in a party’s social media requests. As a matter of course, lawyers need to discover what the other side has posted about an incident. Lawyers also need to figure out what their own clients have posted. I’ve started incorporating social media into my discovery requests and case intake procedures. Simply put, a party has to conduct social media discovery to fully investigate the claims and make recommendations to clients.

My only word to the wise to non-lawyers is this: if you post something on Facebook or Twitter–regardless of your security settings–please understand that a bunch of lawyers, a judge, and twelve citizens may eventually read and use the posts to judge you. Are you comfortable with that scenario? If not, perhaps you should refrain from posting.

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