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Social Media Law: Social media in litigation; its benefits for attorneys

By: Scott Malouf//January 14, 2014

Social Media Law: Social media in litigation; its benefits for attorneys

By: Scott Malouf//January 14, 2014

Scott Malouf
Scott Malouf

Today’s Social Media Law is the final installment of my interview with Ryan Garcia, Dell’s in-house attorney for social media. This segment focuses on the role of social media in litigation and the benefits of social media for attorneys. It is well acknowledged that social media evidence is important in personal injury, criminal and family law matters. As social media use becomes more pervasive, social media evidence is playing a role in many other areas such as: commercial claims, defamation suits, regulatory matters, employment disputes and software audits. To best advise clients in these areas, attorneys must understand how clients use social media.


Editor’s Note: This interview has been edited by the author for clarity, readability and print length.  Prior segments can be found in the Dec. 10 edition (discussing how social media affects attorneys, judges and corporations), Dec. 17 edition (describing what attorneys should know about social media) and Jan. 7 edition (detailing how “password protection” acts affect employees and students). Garcia’s opinions are his own.


With the exception of the personal injury bar, a lot of litigators don’t see social media playing a role of litigation. Going forward, do you see social media playing a role in litigation, especially commercial litigation?

Absolutely. Personal injury is a great one. I don’t know of a single divorce attorney that also doesn’t use social media. Any kind of contentious divorce case they are immediately going to turn there. I think we are seeing a lot more in civil suits as well.

But I think, even at the highest level and the most sophisticated level, when you think of the giant, billion-dollar cases that are years in the making, we’ve seen these large firms where you hire jury consultants, have shadow juries, where you’re doing all of this work looking into the jury pool and how they’re going to decide certain issues.

Social media will absolutely be playing into that. From identifying people, to researching people, to looking at your potential jury base, [there are] so many ways that [social media information is] going to plug into it. That’s just at the big level. I think everywhere in between social media can come up in some way: whether it’s researching issues or reactions to issues to finding evidence.


It sounds like, as a profession, we are going to have to grapple with social media in a 360 degree way, such as technological abilities, ethics and client expectations regarding locating information. Is that correct?

Absolutely. Some of it is good, in what it has enabled us to do. But also from the legal side, some of it is dangerous in terms of how expensive things can be because there is so much more information. When email replaced the memo, we had a really rough patch from [the] legal profession trying to figure out how e-discovery was going to work. We’re going to go though, or maybe we already are, going through the same thing on social media. Eventually, we’ll get better at drawing boundaries for ourselves as well as pulling the relevant information. We created a technology to make passing comments without realizing that it’s now harder to get rid of that than paper. I can’t find something I printed on paper a year ago, but you can be sure that it’s on about a dozen servers across the Internet.


I’ve got one more question for you. Lawyers are so focused on the negatives of social media. But what are the most salient benefits of social media for attorneys?

To me, it’s about that community aspect. It’s about the ability to connect with people that you didn’t have before. Being able to connect with other individuals that have the same interest, whether it’s a legal topic or a band that you like listening to after work, those are incredibly powerful things. To build a community around that. To share information. To be connected with other people. I think there are incredible professional and personal benefits to doing that and social media allows you to explore that.

Scott Malouf is an attorney who helps other attorneys use social media, text and Web-based evidence. You can learn more about him at his website ( and follow him on Twitter at @ScottMalouf. Although he is a good cook, he has been accused of “over herbing.”

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