Tuesday, February 5, 2013

Social Media and Discovery in Litigation

I have blogged about social media and litigation before, but it appears as if courts are starting to jump on the social media bandwagon and ordering parties to disclose their social media posts.  I am sure you have heard the stories about the attorney who sought a continuance of a hearing or a trial because s/he was going "on vacation" only for the court to discover via the attorney's Facebook posts that he was really not on vacation at the time.  Or, the litigant who claims a debilitating personal injury only to be discovered via Facebook posts that s/he can run a marathon, compete in a triathlon, or do some other incredible things despite the alleged injury. 

You may even have made sure that your social media accounts are "private" (i.e. only visible to your "friends").  That may not be enough.  Recently, a New York court ordered plaintiff to provide access to all status reports, e-mails, photographs, and videos posted on that plaintiff's Facebook profiles since the date of the accident which was the subject of her personal injury claim against defendants.  Apparently, defendants and/or their counsel trolled plaintiff's Facebook profile and discovered a photo of plaintiff--which was not protected by the privacy settings--skiing. 

In a Colorado class action sexual harassment case, defendants found Facebook content of the plaintiff wherein the plaintiff posted her financial expectations from the lawsuit, a photo of her wearing a t-shirt with a pejorative word that she claimed was used against her in the workplace, information about her emotional state unrelated to the alleged harassment, postings indicating that she was upbeat post-termination (as opposed to emotionally distressed), posts about her sexual prowess, and other information showing that her lawsuit may not have been legitimate.  So, defendants had all of this information without the need to seek a court order, right? Wrong.  Other class members posted on this plaintiff's wall such that defendants were able to convince the court that it should order those class members' social media be produced to defendants, too.  In addition, the court ordered plaintiffs to provide any cell phone used to send or receive text messages, all information necessary to access any social media websites used by the plaintiffs, and all necessary information to access any e-mail account or web blog used for communication with others or posting communications/pictures for the plaintiffs. 

In the highly open world of social media, it is important to be careful about what you put out for all to see.  I always counsel my clients to assume that every post, e-mail, etc. will be seen by anyone and everyone, including the other side.