06/17/2014 11:41 am ET Updated Aug 17, 2014

Tweets Are Evidence in Court

Most individuals understand that email does not disappear when delete is clicked. Email is valuable evidence in many forms of litigation including discrimination lawsuits. Consider a tweet as an email related form of evidence in judicial proceedings and act accordingly.

A June 12 decision of the U.S. District Court for the Southern District of New York, Kind LLC v. Clif Bar & Company, acknowledged a tweet as evidence while denying a preliminary injunction in a trade dress (appearance of a product) packaging lawsuit.

The Court's decision discussed the requirements to successfully sue for trade dress infringement. These requirements include the inherent distinctiveness or acquired secondary meaning and likelihood of consumer confusion. In other words, are two products so similar in appearance that consumers will confuse one with another.

In a lengthly review of the law and evidence, the Court analyzed the evidence of confusion presented in a survey of consumers. This discussion additionally referenced social media including Facebook posts and Tweets. The Court wrote:

"KIND also submits a twitter post in which a twitter user wrote, "I was about to pick up one of those [MOJO bars] because I thought it was a Kind Bar at the vitamin shop..." (PX 221, Ex. D). This type of initial interest confusion is actionable and therefore this post supports Plaintiff."

Tweets are potentially significant evidence in many other cases including harassment, domestic abuse and stalking. The U.S. Supreme Court agreed on June 16 to review a criminal case from the Third Circuit involving threats posted on Facebook (United States v. Elonis). This much anticipated decision may in part refine the boundary between protected and unprotected speech under the First Amendment.

Modern social media in its many forms is increasingly appearing as evidence in judicial decisions. It is a reminder that what you write and post may be used against you.