The Journal of American Law is a peer-reviewed journal and the only one of its kind in the country. The Journal is a law review focused on important legal issues ranging from complex litigation to Supreme Court rulings.
Issue link: http://journaloflaw.epubxp.com/i/477043
Spring 2015 // Journal of American Law 5 It is a classic moment of which every lawyer dreams. Te key witness for the other side has just provided testimony to the jury that, if not rebutted, will be devastating to the lawyer's case. With chest pounding, the lawyer looks at his trial notes and fnds a reference to a series of photographs and commentary posted on the witness's Facebook pages that clearly show the witness was lying. Te lawyer prepares to present the devastating social media posts to the jury. Te counsel for the opposing side strenuously objects. Will the Facebook post- ings be admitted into evidence? Tat depends. Electronically stored evidence of social media usage is a powerful tool that can be used to support or undermine claims and defenses. It can be efective particularly in lawsuits that allege life-altering damages. Te introduction into evidence of even a single post has the po- tential to change the outcome of a case. Face- book, like many other Internet websites, is part of a social media ecosystem containing expo- nentially growing amounts of electronically stored evidence in the form of big data, which is evidence that can be used in litigation. Te use of social media in litigation is a very broad topic, and it afects most segments of our society. Volumes can be written about social media and how it is being handled by the courts. Tis paper is intended to focus on its use in the more typical tort and contract actions; however, its use in other areas of liti- gation, such as employment law, criminal law, family law, and intellectual property cases, should not be underestimated. Finding and acquiring evidence of social media usage and getting it admitted into evi- dence at trial present challenges as concerns of privacy rights grow. Tis growing confict between one party's discovery rights and another party's privacy rights has created a plethora of recent trial and appellate decisions concerning both discovery and admissibility. Tifany Parker v. Te State of Delaware 1 and United States v. Vayner 2 are recent de- cisions that highlight some of the issues in- volved with the use of social media evidence in lawsuits. Te Tifany court focused on its credibility, while the Vayner case addressed au- 1 Tifany Parker v. Te State of Delaware, 85 A.3d 682 (Del. 2014). 2 United States v. Vayner, 769 F.3d 125 (2d Cir. N.Y. 2014). Robert M. Freedman, Esq., is a 25-year lawyer and partner with Tharpe & Howell LLC in Los Ange- les, Calif. He specializes in complex commercial and tort litigation and has successfully used evidence from social media postings to attack damage claims in tort cases. Tara Taghvay, J.D., of Tharpe & Howell, assisted in the preparation of this article. SUMMARY Te use of social media as a communication tool is exploding, particularly with the youth. Social media websites are becoming an online depository for observations, thoughts, beliefs, actions, desires, health, re- lationships, business afairs, and everything else that afects people and organizations. Te content comes in just about any form imaginable and provides a heretofore unavailable insight into people, places, things, and life in general. With respect to litigation, social media usage can be very powerful evidence to support or attack litigated claims, and its use in litigation is becoming more prevalent. Social media usage while evidence is a diferent kind of evidence, and there are unique challenges in obtaining and using social media in litigation compared to more traditional forms of evidence. Te challenges are due to the transient and ever-changing nature of social media coupled with the confict between the discovery and confdentially rights of the parties. It is further complicated by the applica- tion of the Federal Stored Communications Act, which provides a safe harbor for social media sites to avoid disclosing content. Te topic of obtaining and using social media in litigated cases is very broad and arises in many difer- ing contexts, and at some point in the future, there will be full-blown treatises written about it. Tis paper provides a current overview of the issues that typically arise with respect to obtaining and using evidence of social media usage in litigation and how it is addressed by various courts around the country. Use of Social Media Evidence in Litigation Don't Post It if You Don't Want It Marked "Exhibit A" By Robert M. Freedman, Esq., and Tara Taghvay, J.D. CiviL LitigAtion & PRoCeDuRe