Social Media: It's All Fun and Games Until Someone Gets Sued
If you are going to lose your lawsuit, do not let it be because of Facebook.
Posted April 29, 2019
In recent years, attorneys have looked increasingly to electronically stored information (affectionately referred to by lawyers and judges as "ESI") as fair game for harvesting evidence in a lawsuit. From pre-litigation through trial, here are ways that your Instagram, Snapchat, Twitter, Facebook, Youtube, Tumblr, Pinterest, Reddit, LinkedIn, or other internet accounts may come back to bite you.
There are two primary ways that social media may affect you even before a lawsuit is filed. First, if you reasonably anticipate litigation (whether you plan to sue or believe that you are about to be sued), you have an automatic duty to preserve potentially relevant evidence. If you purposely destroy or alter evidence, a court may penalize you by imposing sanctions, imposing a monetary fine, presuming that the destroyed information would have been favorable to the opposing party, or even completely ruling against you in the case. This duty applies equally to social media content.
Second, your social media presence may help adverse parties or opposing counsel investigate the strengths and weaknesses of your case. Litigators routinely conduct social media searches, on behalf of their clients, to see if opposing parties have anything that might help inform legal strategy. For example, if you claim that your neighbor permanently injured your leg, but you post recent pictures of your success at a local marathon, you can bet that those pictures will find their way into the courtroom.
Discovery is the pre-trial phase in a lawsuit during which each party investigates the facts of the case, in accordance with applicable rules of civil procedure, by obtaining evidence. During discovery, social media is fair game. If an opposing party requests social media content relevant to the needs of the case, they will most likely be entitled to it. Like other areas of discovery, if the request is too broad (for example, "give me access to all of your Facebook account"), the request will probably be quashed. However, some courts have required parties to provide log-in and password credentials to the court for the judge to use. It is never wise to assume that your Facebook account will be off-limits just because it is "personal."
Attorneys can learn important information about prospective jurors using what is publicly available on social media. However, attorneys are prohibited from contacting jurors or potential jurors using social media, which may be tricky when some websites have functions (for example, LinkedIn) that notify an individual when someone else views his or her page.
The Importance of Privacy Settings
Will a court protect your privacy on social media? It depends on the judge, the court, and the specifics of the case, but in general, courts are much more reluctant to protect your privacy if your social media content is set to a public setting. This does not mean that a closed sharing — for example, limiting data to a select number of people — will necessarily keep the data protected; courts have also held that once you share content with a number of people, who may do with the content whatever they wish, you have lost control of the content. Nevertheless, courts are generally more likely to grant access to non-public content when an adverse party discovers relevant information from the public portions of the social media platform. For example, in Rhone v. Schneider Nat'l Carriers, Inc., No. 4:15-CV-01096-NCC, 2016 WL 1594453, at *4 (E.D. Mo. Apr. 21, 2016), a judge ordered a plaintiff to provide a "Download Your Information" report from Facebook after the defendant discovered some relevant information on public portions of her account.
For many people, social media feels like a safe space: a place to vent, to rant, to share stories and experiences with friends and family. For others, it can be a therapeutic outlet; a place to journal, to chronicle events, to share stories and ideas. It can also feel like an extension of self, the crafting of an identity and image through carefully curated photos, slogans, and branding.
As a result, it may be very jarring to find that social media can also be used against you, if you are not prepared. A favorite quote among many attorneys is: "Dance like no one is watching; email like it may one day be read aloud in a deposition," credited to political reporter Olivia Nuzzi. In today's legal climate, in addition to emails, it would be wise to think long and hard about all forms of social media.