Social Media in Litigation: Not As Private As You Think
“Private” Pages are Anything But
You have your Facebook profile set to the highest privacy settings. There’s no way the defense can invade your right to privacy by viewing parts of your private profile, right? WRONG. Courts have broadly refused to recognize a social media privilege. Most courts have found that users post content with the knowledge and purpose that it be shared with others. Therefore, users have no reasonable expectation of privacy even in private accounts. Even to the extent that plaintiffs have legitimate privacy concerns, courts balance this against defendants’ need for access to relevant information, often finding that the latter outweighs the former and ordering the plaintiff to produce the Facebook or other social media postings.
Of course, this doesn’t mean that defendants have carte blanche access to private social media profiles and accounts. The traditional considerations of pre-trial discovery, especially relevance, still apply, and while courts have taken differing approaches, they have consistently refused to allow fishing expeditions where there has been no showing that the private content is likely to lead to admissible evidence. On the other hand, the access granted can be very broad. For example, in a 2011 personal injury case from Pennsylvania, a judge ordered the plaintiff to give the defense all passwords, user-names, and log-in names for any and all MySpace and Facebook accounts.
Social Media Can Harm Your Case
No matter the scope of discovery, social media has been described as a treasure trove of evidence for defense lawyers, and such evidence can have very real adverse effects on your case. In a 2010 New York case, the plaintiff claimed personal injury damages—back injury and loss of enjoyment of life—when a chair made by the defendant collapsed. The court ordered the plaintiff to give the defendant access to the plaintiff’s historical and current private Facebook and MySpace pages and accounts. This was after the defendant had shown that public portions of the plaintiff’s Facebook page contained evidence in conflict with her claimed loss of enjoyment of life. It is likely that the defendant used this additional access to reduce or refute the plaintiff’s damages.
In a 2007 case from Ontario, Canada, the court denied the plaintiff damages for loss of enjoyment of life based in large part on social media photos depicting her partying and celebrating. The photos contradicted her assertion that her social life had been ruined by the injuries she sustained in the car accident, and her testimony concerning the photos contradicted her supposed memory loss and concentration problems.
Even after litigation is over, you must still be cautious. In a 2014 age discrimination case, the plaintiff told his adult daughter that he had settled the case. The daughter then bragged to her numerous friends on Facebook that her parents had won the case, alerting the defense that the plaintiff had not kept the agreement confidential. A Florida court held that the plaintiff was not entitled to $80,000 under the settlement agreement because he violated the confidentiality clause.
Be Smart, Protect Your Case
If you experience injury or harm that might result in litigation, it is important to take steps to protect yourself and your potential claims. As with many issues surrounding potential litigation, consulting with an experienced attorney who can advise you on how to handle your individual social media content is important. However, the following are some general guidelines that apply in many situations:
1. Refrain from deleting social media content that might in any small way be relevant to your claims. There are cases where plaintiffs have gotten into trouble for doing so because it was deemed a failure to preserve relevant electronically stored information.
2. Reduce your social media “footprint” as much as possible. While you may think a particular post or photograph says nothing about your claim or potential damages, you do not want to inadvertently provide the defense with ammunition that might sway a jury or judge. Even something as simple as “checking in” at a particular location can create an issue.
3. In the same vein, don’t put up posts or images that clearly will hurt your claims. A basic illustration would be alleging back injuries and then having a Facebook photo showing you lifting a heavy object. While there might be a perfectly reasonable explanation that is consistent with your claimed injury and damages, this won’t leave a good impression on a judge or jury.
4. Ask your friends and family to not “tag” you in photos and to refrain from discussing you or your case in general on social media.
5. Do not discuss your case on social media. Attorneys often advise clients not to discuss their case with others. This is also true for social media. In some ways, this is more important in the context of social media because that discussion will likely be automatically stored, time-stamped, and readily accessible.
Remember, when it comes to social media, what you post can and will be used against you in your employment law or personal injury case.