The past year has brought an avalanche of stories about the impact social media has had on litigation.

One Florida lawyer was reprimanded by a state bar association for making statements critical of a judge on his blog.  The phrase “Evil, Unfair Witch” apparently left the judge unamused.

Another attorney was held in contempt after asking a judge to delay a trial so he could attend an out-of-town funeral.  The judge visited the lawyer’s Facebook page and discovered he was in town and not at a funeral.  This must have made for a very bad day at the office.

But lawyers are not alone; judges have indulged their social media whims, too.  A North Carolina jurist got himself into trouble by “friending” a lawyer who was handling a matter in front of him and then exchanging comments with that attorney about the evidence in the case.  Their enthusiasm for Facebook apparently led the judge and the lawyer to forget about the rule that prohibits such ex parte communications.

Jurors have gotten into the act as well.  In a number of instances, they have been caught blogging about the cases they’ve been selected to decide—the judge’s warnings against such conduct notwithstanding.  As the New York Times article cited above observes, in at least one case the discovery of this activity resulted in the reversal of a criminal conviction.

Still, very little has been written about how social media significantly raises the stakes for a company that is embroiled in litigation.  Social media creates additional risks for a number of reasons.  One of the principal reasons is this: the company may be talking to the world about the lawsuit and may not even know it.

Managing information and limiting risk poses a substantial problem even when an individual is a party to litigation.  For example, divorce lawyers are starting to instruct their clients to take down their social networking sites out of fear that statements made there will provide an abundance of very useful, and deeply unfortunate, information to the opposition.  For a discussion of this issue see Lawyers USA Online.

And, just recently, The Detroit Free Press reported on a criminal defendant whose incessant “tweeting” prompted a federal judge to tell his lawyers to instruct him to “keep his fingers off the keyboard as well as his mouth closed.”  Shortly thereafter, the unrepentant client posted the message “Tweet On KMA.”

The same problem, but in greatly magnified form, exists for a company caught up in a major lawsuit.  These days, hundreds of employees equates to dozens of individual social networking sites.  Imprudent statements made on such sites could prove devastating: they could disclose compromising information, reveal privileged communications with company attorneys,  outline the company’s litigation strategy—or a viable strategy for the opposing party, violate a protective order or settlement agreement, or even (depending on what is said and who says it) be deemed admissions of the company itself.  A litigation communications plan that does not account for and address this possibility leaves a critical flank unguarded.

To date, this dimension of social media has not played a significant role in business litigation.  But the fact that it will do so—and in fairly short order—is beyond reasonable dispute.  
Indeed, that will be the next avalanche.