As part of our ongoing effort to monitor legal developments concerning social media evidence, we again searched online legal databases of state and federal court decisions across the United States — this time to identify the number of cases in the first half of 2012 where evidence from social networking sites played a significant role. The results are available here in a detailed spreadsheet listing each case, allowing for anyone to review the cases and conduct their own analysis. The cases are accessible for free on Google Scholar. The overall tally come in at 319 cases for this 6 month period, which is about an 85 percent increase in the number of published social media cases over the same period in 2011, as reported by our prior survey earlier this year.
As with the last survey, we reviewed all the search results and added annotations for the more notable cases, and were sure to eliminate duplicates and to not count de minimis entries — defined as cases with merely cursory or passing mentions of social media sites. As only a very small number of cases–approximately one percent of all filed cases– involve a published decision that we can access online, it is safe to assume that several thousand, if not tens of thousands more cases involved social media evidence during this time period. Additionally, many of these published decisions involve fact patterns from as far back as 2008, as they are now just working their way through the appeals process. Finally, these cases do not reflect the presumably many thousands of more instances where social media evidence was relevant to an internal investigation or compliance audit, yet did not evolve into actual litigation. Even so, this limited survey is an important data point establishing the ubiquitous nature of social media evidence, its escalating importance and the necessity of best practices technology to search and collect this data for litigation and compliance requirements.
The search, limited to the top four social networking sites, tallied as follows: Facebook is now far in the lead with 197 cases, MySpace tallied in at 89, mostly with fact patterns circa 2009, Twitter with 25 and LinkedIn with 8. Criminal matters marked the most common category of cases involving social media evidence, followed by employment related litigation, insurance claims/personal injury, family law and general business litigation (trademark infringement/libel/unfair competition). One interesting and increasingly common theme involved social media usage being considered as a factor in establishing minimum contacts for jurisdictional purposes. (See Juniper Networks, Inc. v. JUNIPER MEDIA, LLC, and Lyons v. RIENZI & SONS, INC, as examples)
We plan on providing a complete summary for all of the 2012 cases in early January and it safe to assume that the second half of 2012 will continue to see a sharp increase in the presence of social media evidence.