What Type of Communication Can Be Used During Litigation?

In the business setting, almost no form of communication is off limits in the courtroom and employers and employees alike should be aware that anything they type or text may be used as evidence in a court of law. Indeed, the communication does not need to be an official document on company letterhead to be admissible as evidence. E-mail, text messages, instant messages, and social media messages can all be admissible under the right circumstances. Companies involved in litigation are often required to produce hundreds of pages of both electronic and hard copy documents. For these reasons, every communication, no matter how seemingly trivial, should be written with care.

A misconception held by some is that a person or business cannot be held accountable for promises texted or typed in an email or text message. Unfortunately, they often learn the hard way that, given the correct language, a private message on a social network may sometimes lead to a legally binding contract.

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Social media provides an enormous amount of background information for litigators preparing for and in trial. For example, social media profiles and messages can provide a wealth of investigative material before deposing a witness, and sometimes can even be used as substantive or impeachment evidence in federal and state court cases. Furthermore, when it comes to litigation, it’s not just your public posts that are, well, public. Sometimes, even your private messages or deleted posts can still be subpoenaed and used as evidence.

It is no secret social media evidence has become a critical player in an increasing number of court cases. Profile pages, wall posts, photos, chat transcripts, and private messages can all have potentially major evidentiary impacts in a lawsuit. In many instances, combing through the parties’ social networks is almost a given. According to a recent study by Forensic Focus, almost 700 appeals cases throughout county involved social media and social media played a part in the disagreement over a trial court outcome. And many presume this number to be on the low end. In other words, consider that everything you type, text, or share online or in your private email is free game in a lawsuit.

For more information on this ever-changing issue, contact our office.


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