Social media has created all kinds of new challenges and opportunities in litigation. It also creates a number of possible avenues for abuse. In nutshell, the courts are having a hard time keeping up with social media technology.
Some issues are old in today‘s terms (a few years). One interesting issue than will have far reaching implications in litigation involves service of process issues.
Let‘s start with the “old” issues. One issue that has come back to bite many unwary social media enthusiast is the discoverability of social media accounts. Discovery in litigation is basically the collection of documents and records from the other side during the litigation process. The courts have had a hard time circumscribing allowable discovery of social media.
For those on both sides of the equation, there are many hazards. First, those snowboarding vacation photos do little to bolster your personal injury claims for a hurt back. Insurance companies are certainly on the lookout for such evidence. Surprisingly, many people even in the midst of litigation leave their social media accounts visible to all. Many more post the most inadvisable content. More than just goofy pictures, some will information about their case risking attorney client privilege.
It is also quite hazardous for those seeking to clean up their social media mishaps. In fact, litigants on both sides have faced severe sanctions for missteps. There are the normal sanctions for failure to turn over requested discovery. There are sanctions for destruction/spoliation of evidence by the deletion of accounts. Litigants have been sanctioned and lawyers have been disbarred for counseling it. Most severe are potential obstruction of justice charges in criminal cases for intentional destruction of evidence.
On the flip side, lawyers have been severely reprimanded for posing as a friend in order to gain access. This would include having investigators or the attorney‘s staff do the same. This constitutes very serious ethical violations for misrepresentation of identity. When the person has an attorney, it is considered unauthorized and unethical communication with a legally represented party.
This is all relatively old news. One fairly important wrinkle that has come up with social media is the legality of service of process via Facebook. A recent New York case involved a lawsuit by the FTC against a number of defendants in India. The facts are rather unique in that the defendants had been served by a variety of methods, acknowledged the lawsuit and hired an attorney to who entered an appearance on their behalf in the federal lawsuit. The subsequent service was for service of motions for violation of temporary injunctions issued by the court.
Though the facts of this case seem somewhat restrictive, the court set forth criteria for sufficiency of service via Facebook and/or email which would seem to allow broader application to service by Facebook, email and/or other social media.
The basic requirements of service is to put the defendant on notice of the suit. It has been suggested that the ruling leaves open the possibility of a fairly minimal showing of reliability of notice through these various media. According to some, It may be that it need only be shown that the defendant owns the account and is active on the account to meet the required indicia of reliability of notice of the lawsuit. It takes little imagination to come up with all manner of disputes over the each of these elements.
This like all the other social media issues will open a host of potential abuses by overzealous parties, attorneys, investigators and the like. It will also put the courts once again behind the technology curve as they try to define the scope of allowable service of process through social media. Unfortunately, this article does not come close to addressing all the potential technological issues and possible abuses. The courts will be left to that task.
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