Social Media: Use in Litigation

Social media usage continues to increase as more platforms of social media become available. There are an estimated 2.62 billion people globally using social media. Given how prevalent social media usage is, attorneys and litigants are increasingly using social media as a form of evidence in litigation. Social media can be used in many different types of legal disputes: family law, criminal, protective orders, personal injury, guardianship disputes, employment disputes, and civil litigation cases.

Given the potential for using social media in litigation, attorneys and litigants should thoroughly explore social media while preparing their case. Attorneys should be well-versed in the types of social media used by their clients so they can assist their clients in obtaining potential evidence for their case. Clients should be informed that social media usage may be used as evidence against them. Attorneys and litigants must be careful to preserve social media once it is identified as evidence.

Once obtained, social media is admitted at court like any other type of evidence that is submitted to the court. The baseline question for all evidence is whether the evidence is relevant to the issues pending before the Court. Relevant, by legal standard, means that the evidence has “any tendency to make a fact more or less probable than it would be without the evidence.” Using a social media post to embarrass or harass the other party will not be admissible unless it has some relevance to the case.

Unlike other forms of evidence, social media posts may be difficult to authenticate. People may use a different name on their social media platform, or the user may take steps to remain anonymous, making their identity hard to prove. To authenticate a piece of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Absolute proof of authenticity is not required; circumstantial evidence may be used to establish authenticity. An attorney or the litigant should pay close attention to any identifying information that can show that the social media evidence was made by the person they believe made it.

Social media evidence can be instrumental to a case. The attorneys at Slotegraaf Niehoff, P.C., are knowledgeable and experienced in using social media evidence at court. Working with an experienced attorney who is familiar with using social media as evidence in litigation can be vital to the outcome of your case.