With the rise of websites like Facebook, Twitter, LinkedIn and YouTube, we are documenting and sharing more aspects of our lives than ever before. Litigators have quickly realized that an opposing party’s social media pages can contain valuable and easy-to-access evidence. For example, in a personal injury case, defendants often search plaintiffs’ Facebook and Twitter accounts to see what types of activities an injured person is capable of engaging in. In a defamation lawsuit, a defendant’s social media pages may help show what kind of reputation the defendant has in the community. It is important for anyone who is faced with a lawsuit to understand the effects of their social media posts on their litigation.
Content that has been marked as “private” on a social media site is not necessarily shielded from an opposing party during litigation. While privacy settings work well to keep an opposing party from gaining access to social media content through normal internet searches, the party may still be able to access the content through a process called discovery. Discovery is the fact-gathering stage of litigation, during which parties are entitled to request and receive relevant documents and electronic information from the opposing party. If a party requests the production of social media content, that request must be honored as long as the information being requested is relevant and is not privileged. You should be aware that the test for relevancy is fairly broad. If you are faced with a discovery request for social media content, your lawyer will determine whether the requested information is relevant to the lawsuit, and whether it may privileged.
You may be tempted to simply delete your social media profiles in order to avoid having to produce the contents of those profiles to an opposing party. However, parties to a lawsuit have a duty to preserve relevant evidence. If a party violates that duty, they may be accused of “spoliation.” Spoliation occurs when a party accidentally or intentionally alters or destroys evidence that is relevant to a lawsuit. When a court finds that there has been spoliation, it will often assume that the information that was altered or destroyed was harmful to the party that destroyed it. For example, if you permanently delete your Facebook account during litigation, and that account contained relevant information, a jury may be instructed to assume that the information contained in the account was harmful to your position.
Below are some key points for individuals facing lawsuits to keep in mind when using social media:
- Do not assume that an opposing party will be unable to view your “private” social media posts.
- Check with your attorney before permanently deleting any social media content because you may have a duty to preserve it.
- Even if you think you have deleted a social media post, you should be aware that it may be retrievable using computer experts.
- Do not reveal otherwise privileged information about your case on social media while your lawsuit is ongoing. Once you have revealed privileged information, the privilege is lost.
- Think before you post any information on a social media website while you are in the middle of lawsuit, or if you think a lawsuit is likely to occur. If you would not want the opposing party to see the contents of the post, do not post it.