There’s an old saying about diaries:  “keep a diary and one day it may keep you.”
 
Much the same could be said about Facebook and other social networking media.
 
At Mikell Law Firm, one of the first questions we ask a prospective client is whether or not they – or any other known party to the case –  has a Facebook page.   This is because the way we communicate has changed drastically over the past few years and our rules of procedure and evidence are changing right along with it.
 
This fact is beautifully hightlighted in an article that appears today in Law.com.  The author, an employment law specialist, notes that an employee’s unlawful termination case could be seriously undermined if they had blithely posted or tweeted that he or she “would do anything do get back at my employer.”
 
But you can protect yourself with “privacy settings” - right?  Think again.
Recently, in EEOC v. Simply Storage Management, a federal court permitted an employer to obtain discovery of an employee’s social networking activity that, through privacy settings, the employee had made “private” and not available to the general public.
 
Once you warn your client that social networking communications could jeapordize the case, can the client run home and dismantle the Facebook page and get off of Tweeter?  Apparently not.  Courts are treating social networking communications much the way they treat e-mails: if you reasonably anticipate litigation, you run the risk of sanctions for “spoiliation” if you do not take measures to preserve evidence.
 
As the author of the piece rightly states “if your client is sued by an individual and you are not harnessing the power of social media as part of your litigation strategy, you’re making a BIG mistake”.