The question of where social media is headed is a bit misleading because social media is here to stay. Social media is pervasive, touching businesses, clients, and their adversaries. Social media is even more ubiquitous in people’s personal lives. Coupling these factors with the recent ruling in Riley v. California, Nos. 13-132, 13-212 (U.S. June 25, 2014), a criminal case that has implications for civil suits, we see a trend in which plaintiffs’ lawyers cannot afford to overlook the informational value and evidentiary potential of social media.
In Riley v. California, the Court held that “police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”
The Court reached this decision because of the sheer breadth of data that cellphones typically accommodate. Cellphones, much like PCs, are social media hubs that may require expert computer forensics to uncover relevant evidence. Whether looking at Facebook, Twitter, Google +, YouTube, or LinkedIn, there is a literal gold mine of information containing people’s whereabouts, behaviors, and thoughts.
For plaintiffs’ lawyers, social media poses certain questions throughout litigation:
1. Did my client make admissions through a post, picture, or video?
2. Did my adversaries admit any fault or liability through their social media?
3. Do any jurors or potential jurors have information that would reveal a bias?
It will be crucial for plaintiffs’ lawyers to craft effective means of advising clients of the consequences that social media can have on litigation and formulating effective plans for social media searches based on what the opposing party’s demographics demands.
Plaintiffs’ lawyers should:
1. Advise clients about social media consequences in litigation;
2. Understand spoliation issues regarding disabling and deleting accounts and other content;
3. Understand how demographics affect different social media platform usage; and
4. Know the ABA’s rules on using social media to “review a juror or potential juror’s Internet presence” and biases.
We live in a rapidly changing digital world, and social media has become an important facet of litigation. To serve the best interests of their clients and themselves, Plaintiffs’ attorneys must actively understand social media, its implications, and how to effectively harness its potentials.
Did you know: Facebook stores, accesses, and analyzes 30+ petabytes of user generated data; that’s 6.7 million (4.7Gb) DVDs worth of data.