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Can your Facebook posts be used against you in a lawsuit?

Tony Tramontana

Facebook posts in Lawsuits

Can your Facebook posts be used against you in a civil lawsuit? With the increasing growth of social media, many judges have had to confront this question, especially in cases related to medical malpractice. While most lawyers will answer that question with “It depends,” it’s important to realize that social media data is no different than any other type of electronic data. What you share with friends on Facebook can be used in court.

How the Court Views Facebook

Typically, the courts have held that there can be no reasonable expectation of privacy since Facebook’s homepage specifically states that “Facebook helps you connect and share with the people in your life.” Even if you’ve blocked photos and posts, that information may still be discoverable if it’s relevant to a lawsuit you’re a part of. The key issue is whether or not the party seeking to access your profile has a legitimate reason for doing so. The courts have applied this standard in order to determine whether a litigant’s Facebook posts will be discoverable. It must be shown that the requested information may reasonably lead to the discovery of evidence that is admissible.

Cases Where Facebook Posts were Ruled Relevant and Non-Relevant for Discovery

If you’ve made Facebook posts about all the fun you had on your latest skiing expedition after alleging serious and permanent injuries from an auto accident, that information is relevant to the lawsuit from the car accident and will be discoverable. The plaintiff in Largent vs. Reed found that out the hard way. She was ordered by the court to turn over her Facebook log-in information to the defense counsel. At the same time, it’s important to note that Facebook posts aren’t discoverable if your opponent just want to go on a fishing expedition to find out what you’ve been doing over the last several years.

In a Louisiana personal injury case- Farley v. Callais & Sons, LLC - a federal judge ordered of all posts his lawyer determined to be related to the accident in question or plaintiff’s alleged injuries. The Judge would not, however, require Plaintiff to share his Facebook login information or sign an authorization permitting defendants to get the information directly from Facebook.

In the case of Zimmerman vs. Weis Markets, the plaintiff claimed permanent injuries while using a fork lift. At the same time, he posted that he enjoyed bike stunts on the public portion of his Facebook page. The court determined that this information was relevant to the legitimacy of his claims. Privacy interests didn’t trump the discovery requests in this case.

At the same time, the court is fair in its rulings of what’s discoverable and what’s not. In the case of Tompkins vs. Detroit Metropolitan Airport, the plaintiff claimed back injuries due to a slip and fall at the airport. The defendant came upon some plaintiff photos showing him pushing a shopping cart and holding a dog. The court rule that these photos weren’t inconsistent with the plaintiff’s injuries. Furthermore, the court stated that pictures showing the plaintiff jogging or playing golf would’ve shown an inconsistency in the plaintiff’s claim and would’ve have been discoverable.

The Duty to Preserve Social Media Evidence

Information on social media platforms like Facebook is subject to the same duty to preserve as other types of electronically stored data. This duty is triggered when parties can foresee that its information may be relevant to the issues surrounding the litigation. All evidence in a party’s control, custody and possession is subject to the duty to preserve. That means you can’t delete or clean-up any existing data on Facebook, including posts and photos. Failure to preserve relevant evidence can result in sanctions for both counsel and client. In Lester vs. Allied Concrete, the court sanctioned both counsel and the plaintiff for engaging in spoiling the evidence. The lawyer had instructed his paralegal to tell the plaintiff to clean up his Facebook page. Together, the paralegal and the client deleted 16 pages from his account and deactivated his page. The photos were later recovered by a forensic expert, and sanctions were given due to the misconduct.

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If you're involved in a case that involves social media evidence, you should contact an experienced attorney like J. Antonio Tramontana. Get a free consultation today.

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