On March 8, 2017, federal Judge Sidney Fitzwater, of the North District of Texas, issued a memorandum opinion and order in Charalambopoulos v. Grammer, No. 3:14-CV-2424-D, 2017 WL 930819. The case had already been in litigation for years and involved allegations of domestic violence and defamation. According to earlier opinions issued in Charalambopoulos, the parties had been staying in Houston, Texas where the defendant – a reality television star and former wife of Kelsey Grammer – was undergoing cancer treatment. The parties, who were dating at the time, got into an argument at their hotel during the trip. Days later, the defendant tweeted about the incident to her roughly 198,000 Twitter followers.
Currently, at the latest step in the litigation, the parties have begun the designation of expert witnesses. As is common with U.S. federal litigation, the parties had designated expert witnesses and then sought to re-designate or strike those witnesses from the expert list. The proposed witnesses in Charalambopoulos included experts in social media, along with polygraph testing, medicine, criminal law, forensics, and pathology. In order to support his defamation claims stemming from the tweets, the plaintiff designated an “attorney with experience in the area of social media and the law” to serve as an expert who would testify “on the impact that statements made online and particularly via social media [could] have on an individual’s reputation.” Id. at *18.
While Judge Fitzwater ultimately rejected any expert testimony “on the effect online statements [would] have on Charalambopoulos’ interpersonal relationships or his ability to earn a living,” he allowed the expert to testify as to how information is disseminated through social media and its potential impact on a person’s reputation. Id. at 20. Grammer had challenged this point, claiming that the expert’s testimony would not assist a jury because it would provide “uncontroversial common knowledge.” Id. at 19. Judge Fitzwater disagreed, stating that:
[A]lthough some (if not most) jurors will have at least a basic understanding of social media and the potential impact a statement on social media can have on a person’s reputation, the use of Twitter and other forms of social media (and the potentially far-reaching impact of statements disseminated through these means) is not so widespread that the court can say that Browning’s expert testimony will not “help the trier of fact to understand the evidence or to determine a fact in issue.”
Id. (quoting Fed. R. Evid. 702(a)).
Judge Fitzwater’s conclusion raises several questions. When, if ever, will social media usage become common knowledge and, therefore, expert witness testimony on it excluded? According to its website, Twitter – the social network at issue in Charalambopoulos – has 313 million monthly active users and one billion unique visits to sites with embedded Tweets each month. People from all walks of life – journalists, politicians, product promoters, and ordinary citizens – use Twitter daily to communicate. Should litigants confronting social media evidence, then, retain experts for good measure to use at trial? Given the ubiquity of social media today, what other facets of popular culture could expert witnesses be called to opine in court? While these matters may seem trivial at an individual trial level, considering how often social media issues arise in litigation and what precedential effect cases like Charalambopoulos could have, the impact could be substantial.
