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Ethics LegalTech


Your Clients and the Danger of Social Media


Elisha N. Hawk


Discovery Issues Whether social media content is discoverable in civil


litigation is the subject of a growing body of case law. As the Court of Appeals of Maryland pointed out in Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011), “social networking poses two threats [to your client]:


that information may be (1) available


because of [your client’s] own role as the creator of the content, or (2) generated by a third party, whether or not it is accurate.”1 Tat information may be available because of your client’s


own role as the creator of the content is probably the most frustrating implication of clients’ use of social media. Social networking sites encourage disclosure of personal details of our lives.


“Facebooking” has become an integral part of how we


stay connected to friends, family members and colleagues. Wall posts offer snapshots and glimpses into seemingly mundane aspects of our daily lives. Te posts contain details that are often forgotten soon after they are posted, details that take on new significance during litigation. Take for instance a client who claims she is unable to lead an active lifestyle, but whose posts on social networking sites indicate the contrary.2 out there, to what extent is social networking content protected


Once it’s


from discovery? 1 Griffin v. State, 419 Md. 343, 19 A.3d 41 ,421 (Md. 2011) (quoting David Hector Montes, Living Our Lives Online: Te Privacy Implications of Online Social Networking, Journal of Law and Policy for the Information Society, Spring 2009, at 507, 508).


2 See Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010).


Getting new customers from the web has never been easier.


I


n our house, my husband and I have a “No Deletes” rule, a rule I often refuse to follow. Te rule applies to all Facebook posts made on our respective Facebook pages


by the other pranking spouse. Usually, there’s no real harm and most “friends” find the posts amusing, often recognizing immediately that they are witnessing a practical joke in action, and sometimes joining in on the fun by chiding the victim about taking better care to protect his or her Smartphone or computer from attack. Te potential for harm changes, though, when the Facebook user is a party to litigation. As social networking sites become increasingly public, the


challenge of controlling content becomes even more difficult. For example, Facebook has released a new Timeline feature that allows viewers greater access to historical posts and activity on the site. Te new feature requires active involvement and effort from users to maintain control over who will have access to that content. Your clients’ use of social networking sites implicates a whole host of discovery and evidentiary issues.


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To find out what Yodle can do for you, call Yodle representative Brian Dole at:


(480) 455-6741 Trial Reporter / Winter 2012 51


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