I spent the past few days in NYC, at LegalTech Show 2011, learning about much of the new technology that is impacting the practice of law, and the ways that that technology is changing the way we litigate cases. No surprise, the single biggest issue on the minds of judges and litigators alike was Facebook: The most provocative vignettes, as told by United States Magistrate Judges Andrew Peck and James Francis, of the Southern District of New York were about jurors discussing the facts of cases on their Facebook pages, a witness’s expectation of privacy in something they posted to their page, but which was only intended to be seen by their “friends.”
Presently, there isn’t much law on this topic, but the general consensus—at least insofar as the federal bar was concerned—was to expect changes in the Federal Rules of Civil Procedure after the rules committee next convenes. Until then, if you’re involved in any kind of lawsuit (or expect that you could be so involved), whether you’re a business owner, public figure, or even the average Joe, you should think twice before posting any personal information to a social media site. This doesn’t mean that you shouldn’t use social media, just that you should (1) use your head and (2) not be so naïve as to believe that your worst adversary could never get his hands your posting(s), regardless of how private you might think they are at the time.