Major Challenges in Using Social Media in Litigation – Part 1

Social Media Litigation

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. Here are the first four challenges.

 

Controlling Social Media Use During Active LitigationSocial media is designed specifically to promote contact and communication with friends and associates, yet this obviously isn’t the best policy during an active case, when the rules of evidence still apply.

Proper Protocol

While the question of whom to friend or follow or what to repin has always been ruled by social media protocol, this takes on a greater significance during litigation. Is it acceptable for lawyers to send friend requests to judges, for example, or does that cross the line between personal and professional? Some jurisdictions feel social networking at this level should be impermissible, because it speaks to potentially inappropriate influences.

Sheer Volume

Even a social media profile that’s only somewhat active can generate an enormous amount of personal data over time, which can be overwhelming to dig through. No matter how rich the repository, the collection process used during social media discovery must allow for significant culling in order to discard volumes of irrelevant information.

Ethical Debates

Social media discovery sometimes feels like navigating a minefield, with so many litigators unsure where the acceptable boundaries lie in any given situation. This brings up the question of counsel’s ethical duty about how to instruct clients with regards to social media. Currently, the official court stance has been firmly on the side that anyone with a social media profile should accept that they have no reasonable expectation of privacy.

Look for four more steps in our next blog –Major Challenges in Using Social Media in Litigation – Part 2. If you would like more information about eDiscovery or how TERIS solutions can assist you, please contact us!

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