Social Media Records: Accessible In Litigation?

Linkilaw Business News

In the last seven or eight years, social media has been taking up a pivotal role in our global lives, dramatically changing the ways in which we communicate, shop, do business, date, travel, and so on.  Our realities have been deeply altered on a daily basis; and, as with every impact so immense, controversy arises. Countless debates have emerged on the topic on the legal boundaries of social media, as well as the moral implications that come with it. Indeed, no recent development has affected litigation and the legal practice as much and as fast as the surfacing of social networks such as Facebook, Instagram, Twitter, YouTube, Snapchat, and the likes.

The semblance of no boundaries

In this blog post, we’ll be tackling the role of social media records in litigation, and why you should be very careful about what you disclose to the world via your social media account.

Social media often gives its users the illusion they can say or share whatever they want, without much prior consideration and with very mild consequences, if any. Most of the time, that is the case – until it isn’t.  

The legal viewpoint on social media records

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The fact is undeniable: Social media account records are accessible during the litigation process. Whether this is morally acceptable or not seems to no longer be the question: It is, at the bottom of it, information a person has willingly chosen to make public. Just to give you a vague idea, one survey of published case law from 2010 and 2011 identified 689 cases involving social media evidence, reports Forensic Focus.

In general, the legal profession considers social media records should not just be accessible, but mandatory, a sentiment which best expresses this article published by Andy Radhakant and Matthew Diskin for the Litigation Journal. As they put it: “We believe that running a social media search of clients, opponents, and witnesses is part of the minimum level of due diligence expected of a competent litigator. Indeed, some courts have questioned whether lawyers who have not run Google searches on a defendant but are asserting that the person cannot be found have in fact made reasonable efforts to locate the defendant.”

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Tricky areas

When you publish a public post on social media, you can hardly claim an expectation of privacy. However, what if your profile was set on private and the lawyer or investigator gained access to this information under false pretense, or with an ulterior motive to build a case against you? It is (at the very least) ethically problematic for legal professionals to “friend” people just to get access to information in their social media profiles, as Radhakant and Diskin argue, but this evidence can be nonetheless proved valid in the courtroom.

Keep in mind that even if you marked your posts as private, these can also be subjected to the so-called legal discovery. This is exactly what happened in the EEOC vs. Simply Storage case, the ruling of which stated that social media content “is not protected from discovery merely because a party deems the content ‘private.’” Such an outcome is possible because posts on social media are considered “electronically stored information”. The court can forward the discovery request to the social media website in question, but it is the user that must allow an authorisation for the records.

A final word to the wise

Regardless if you post a status, photo album, video, or blog entry on private or you share it with the entire online universe, you should know it could be potentially used against you in the course of litigation. Whether these records should be accessible or not is completely beside the point, because the fact remains they are, and as such can cause you serious damage. So, think twice and hard before you click that Publish button.