1. Before relying on any piece of evidence from social media, be absolutely certain you understand what was posted, by whom, and what it says or contains. In one case I recently worked on the defendant was planning on relying on a photo of a person engaged in a particular activity which appeared on my client's Facebook feed. As became apparent from the deposition questions of my client, the defense team did not understand that the photo depicted another person engaged in the activity in question and had been posted to my client's feed by one of his friends. In other words, it proved nothing about my client's activities.
2. Corporate clients need to be just as careful, if not more so, about what they say or write in social media fora. The era of social media, really a combination of instant communication and publication, allows for marketing in real time as never occurred before. Now that social media is maturing and continuing to mature, it reaches a broad variety of platforms, demographics, and tastes. These features can create tremendous business opportunities. The nature of social media should also create some caution. Social media posts for businesses are not always as well vetted prior to posting as hard copy communication or press release. As a result, there is a real possibility for social media posts about products and services that overreach, and perhaps go beyond advertising hyperbole into misrepresentation. Additionally, social media chatter is often a rich source of less than helpful comments between management and co-employees in employment cases. Moreover, for both risks the information is not subject to the corporate entity's retention/destruction policies, but is likely out of control permanently the moment it is posted or sent.
3. Carefully consider the nature of a post before using it as evidence and always consider the context. While the post in isolation may seem to be the perfect piece of evidence, when placed in perspective it may not be so strong. For example, an over-promise concerning a good or service on a brief social media post may not really be that compelling when the same social media post or page makes it clear that the consumer should go to the company's full website or contact customer or sales services to confirm details prior to purchase. Similarly, posts on individual social media about certain happy events in the life of a plaintiff claiming emotional distress may not be sufficient to prove that they did not suffer emotional distress or injury. Few people, at least among those not institutionalized, never have any happy moments. Moreover, the easily understood tendency is to put a good public face on and post about happy events, not publishing long posts about your personal struggle with depression or other illness. Obviously, photos which depict a plaintiff engaged in conduct inconsistent with their injuries or claimed condition may well be more problematic. (Self-surveillance and reporting is really very convenient.)
4. As is always the case, don't try to cover up evidence. Aside from being illegal, the coverup is more damaging in many instances than simply dealing with the evidence head on.
5. Do not neglect the use of social media for witness research. This is one facet of social media which has proved to be of great use for me in litigation. In most cases, as soon as I know enough to list a witness I check every form of social media I can access to learn more about them. In some cases this effort, which is relatively painless, has greatly informed my questioning. On balance, I have found this use of social media evidence to be more useful on a frequent basis than for direct attacks on a party.