How has social media impacted the litigation landscape?
San Francisco business litigation attorney, Bahram Seyedin-Noor, talks about how social media impacts litigation today.
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Having arrived in Silicon Valley in the 1990s, obviously, one has seen the proliferation of social media both in the personal realm with Facebook and Snapchat but also in the business realm with Twitter and LinkedIn. But also, again, Facebook, which companies are increasingly using for business purposes. And it’s remarkable the impact that’s had on litigation in three different areas, discovery, the merits of the lawsuit, and trial.
The discovery phase of litigation is when evidence is exchanged between the parties. And lawyers are increasingly becoming aware that they need to be looking for not only from their client’s but after their adversaries looking for social media accounts and information relevant to the lawsuit that could be found on those social media accounts. So it’s had a profound impact on discovery.
It’s also had an impact the actual merits of the lawsuits. Because a lot of our clients in Silicon Valley now use social media for business, we’re seeing potential liability and exposure come out of their use of social media. When companies have employees get on Facebook or get on LinkedIn or on Twitter and take positions or make statements they have to be very careful that that’s behind done in a regulated sort of a way where they know who’s making the statements, they know why they’re making the statements and it’s a controlled environment. Because we’ve seen instances where statements are made on social media, which then give rise to lawsuits and affect the merits of the suit.
And then what we see a lot in litigation is how social media can actually play out in the trial I had a trial in Delaware several years ago where I was cross-examining the expert witness for a software company. And one of the issues was whether this expert witness had run specific kinds of tests and analysis with respect to the software that he was opining on. And it turned out that he’d skipped what we considered to be an important analytical step. And his reason for doing that was he said he was pressed for time he just didn’t have time to do this next level of analysis. But I’d found on social media that at the same time he said he was pressed for time there he was on social media posting pictures of himself with his dog and talking about how great everything was. He clearly had plenty of time for that but didn’t have time to do this. So people need to be aware that if you’re representing an expert witness or if you’re cross-examining an expert witness or any other kind of witness you need to take a look at their social medial footprint because it could either give you a shield or a sword. And it’s become a pretty potent tool in litigation.