CHAPTER 9 The Rise of Social Media and Its Role in Litigation

Sarah Marmor and Deirdre Fox

Today, nearly everyone—individuals, employees, corporations, government entities—has a social media presence. Whether through Facebook, LinkedIn, Twitter, Instagram, Pinterest, Flickr, or YouTube, or any other means by which users create online communities to share information, ideas, personal messages, videos and other content, the ways that people and companies can communicate about themselves are ever expanding.1 This revolution in communication—faster, broader, less mediated, and in many ways more impersonal than ever before—creates enormous opportunities and serious legal risks for organizations.

With social media so commonplace, parties in litigation have discovered and will continue to discover uses for the vast quantities of information that have been casually shared. This chapter focuses on the uses and pitfalls of social media in litigation, ranging from obligations to preserve social media evidence in prelitigation, to informal and formal discovery of such evidence before trial, to effectively using it at trial.2

Roots of Social Media

Precursors to social media trace back to the first e-mail, sent in 1971. In February 1978, the first dial-up computerized bulletin board system (CBBS) was launched, and electronic communication grew in popularity throughout the 1980s. October 1989 saw the birth of America Online, popularizing e-mail to the general public in the United States. ...

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