Lawyers are beginning to get the idea that the definition of a “document” in the discovery rules extends to entries on social media such as LinkedIn, Facebook and Twitter. There remains the perception, however, that these things are relevant only to crime and personal injury claims and that they have little bearing on corporate or commercial litigation.

Gordon Exall’s Civil Litigation Brief is, as so often, the first to point us to a case called Green v Marston. The point at issue was whether a Mr Lochner was a de facto director of an insolvent company.

In his article Social media and civil evidence: what did you say on LinkedIn? Gordon Exall points us to paragraph 52 of the judgment in which Lochner’s LinkedIn profile described him as corporate finance director of the company until after the liquidation date.

As Gordon Exall observes, this was only one of several factors which pointed to the conclusion that Lochner was a shadow director and therefore liable to repay money into the company. It was nevertheless a factor of which the court took notice.

From my observation, many people either overlook to update their LinkedIn profiles or have reasons, good or bad, for preserving the perception that they still hold a job which they have left. People rush to update their profile on a promotion or move to an exciting new job, but it is not necessarily at top of mind when they are dismissed or the company goes under.

There are perhaps few cases where this matters very much. Arguments as to whether you were a shadow director and / or whether you held yourself out as having representative authority of some kind are an example of a case where it matters.

The discovery message is worth repeating over and over again.  Don’t forget at least to think about sources of potentially disclosable evidence beyond the sources which lie directly under the control of your own client or the other side.

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