Conducting Litigation in the Social Media Age

In the past several years, social media has played an increasingly prominent role in individuals’ daily lives. At the end of 2011, Facebook had 845 million users worldwide. Around the same time, Twitter boasted approximately 100 million active users. For its part, LinkedIn claims to have more than 150 million members in over 200 countries and territories.

Given the prevalence of these and other social networking websites and the information regularly posted to them, social media has the potential to be an invaluable tool for litigators. Counsel have started to consider social media as a potentially effective means of service. Further, counsel are increasingly demanding that the content of social media accounts be produced on discovery. Finally, when used appropriately, there is no doubt that social media can be a powerful investigative tool for counsel seeking to gather evidence. This paper will outline the key developments in this emerging area of law, as well as the ethical obligations that counsel should consider when using social media as a tool in litigation.

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Originally presented at The Law Society of Upper Canada's Special Lectures 2012: Employment Law and the New Workplace in the Social Media Age program on April 25 and 26, 2012.

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