The impact of social media continues to grow in litigation. Social media is becoming increasingly more popular in society. Social media is important for companies to utilize for advertising and marketing to allow businesses to stay competitive. Various sites like Facebook, Google Plus, Twitter, Instagram, Flicker, LinkedIn, YouTube and the like provide companies the opportunity to connect with millions of people. However, they simultaneously create legal risks that can range from bad public relations to brand confusion. Social media is also used by many people during their free time to make various posting about all aspects of life.
In litigation, lawyers are using social media to screen jurors, jurors use social media to post about cases they are sitting in, judges are using social media to make sure jurors are not using it, people use social media in general to offer legal advice on matters in which they have no experience, and jury consultants are following social media to give advice on trial strategy. Social media is paving the way to new litigation strategy.
Social media implicates considerable privacy concerns, allowing people to learn the most intimate information about one another. Posted content may be available to family, potential employers, school admission officers, romantic contacts, and others. Even if the content is removed from the social media site it may still continue in cyberspace. Further, once litigation is pending or reasonably foreseeable, there is a duty to preserve evidence. The material can be taken down off the social media website, but must be preserved. This means that even if a post is removed, it still must be maintained and produced if requested in discovery.