Social media has the potential to complicate cases from the first meeting with a client all the way through the delivered ruling. With the increasing popularity of social media across multiple platforms and devices, social media discovery is more likely to play a major role in litigation these days than not. Yet, despite its prevalence, there are still some very big challenges in using evidence from social media effectively during litigation. In are additional challenges.
The pervasive nature of social media means that even potential jurors are likely to be at least somewhat exposed to any given case prior to selection; social media has proven to be a significant obstacle in finding a truly impartial jury. After selection, social media continues to carry the potential for impropriety, particularly if jurors disregard court instructions and discuss the case in any way, even online. This increases the risk of mistrials and further extends court proceedings.
Blurring the Boundaries of Professionalism
Facebook allows users to show their approval of certain products, groups or companies by hitting the “like” button; in doing so, would counsel be crossing an invisible ethical boundary? What about on LinkedIn, where users endorse each other for their specific areas of expertise? Can listing a particular skill qualify as false advertising? While networking is important in every career, the nebulous nature of online networking makes it clear that extra precautions should be taken at all times.
Ethical and professional dilemmas aside, there are also the practical complexities of social media discovery to consider. The preservation of metadata, the general intricacies of collecting cloud-based data, and the challenges of collection and preservation are all major stumbling blocks in achieving effective social media discovery.
Social media, by its nature, presents a very broad picture—some courts have said too broad, and that aimless data sifting is discouraged. Additionally, the content gathered must have its authenticity verified, which adds yet another layer of difficulty for litigation support to wade through.