Whether we like it or not social media is here to stay. Social media has changed the landscape of human society in many ways. It has impacted how humans communicate with each other and what we share with each other. It has changed the marketing industry. Social media posts have increasingly been used in lawsuits and may be subject to discovery. (The definition for discovery in the legal sense means ‘the compulsory disclosure, by a party of an action, of relevant documents referred to by the other party’.) The issues surrounding social media and lawsuits will continue to be a hotly debated subject in the courtrooms for decades to come and the law regarding social will likely continue to change. This blog will provide a basic review of some cases involving the discovery of social media posts and how this can impact your case.
For a long time, the use of social media was associated with youth. Initially, social medial was almost exclusively used by the 15-25 age group. Statistics published in 2015 show this is no longer the case. It is believed there is approximately 154 million users of social media. While 28.3% of users are 18-24, the largest group, 35.3% of users are between the age of 25-34. Nearly as large of a group are users aged 35-44 with 29% of the market. While those 65+ only made up 14.6% of users it has been noted that every year the amount of users in this age category is growing. Of the many social media platforms that exist, Facebook continues to have the lion’s share of users. A basic understanding of social media and lawsuits is therefore beneficial to everybody since nearly everybody is using some form of social media.
While common sense moves most users to use ‘privacy’ settings that may limit what can be seen by others, this does not mean that the law considers all posts to be ‘private.’ In the most broadest of senses Federal Rules of Civil Procedure (26) states that items to be produced can include ‘a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defense.’ Social media posts could fall into the category of ‘electronically stored information’ that is discoverable.
The question that will often be debated before a judge in these discovery requests will be related to ‘relevancy.’ Clearly, not every post is relevant to a lawsuit. At present many rulings have been made that prohibit the proverbial ‘fishing expedition’ and current law typically prohibits the release of one’s entire social media history.
However, determining if something is relevant, is a question that debatable and may require a judge to rule on. No two judges will rule the same way which is why social media issues remain hotly contested. For instance, in one case where the plaintiff alleged an emotional distress claim, a judge ordered that the plaintiff produce all social media posts that ‘revealed, referred or related to any emotion, feeling or reference to mental state.’ Theoretically, this means that if the post was about how happy she was that her grandbaby began walking, since it mentions an emotional state, the judge would have wanted the post to be produced. However, in an employment law case, where emotional distress was part of the claim, the same identical request was made regarding providing all social media posts related to emotions. However, the judge of that hearing ruled that only those posts where mention of mental state and the employer were allowed to be produced. This ruling greatly limited those posts that were discoverable.
Because defense attorneys often want everything produced and plaintiff lawyers tend to want to protect their client’s right to privacy, at times a ‘camera review’ of the posts are ordered by a judge. Basically, this means that the judge will order all social posts to be turned over to him or her and then the judge determines which ones need to be produced.
The law allows people to object to burdensome requests for discovery. Social media discovery can be considered ‘burdensome.’ While the obtaining all social media posts ever made by a person may only require a few clicks, the review of all social media posts ever made by a person can be time consuming for a judge or a lawyer. Especially if the person is a long time social media user and frequent poster. The court will generally request on this ground alone that any requests from a defense lawyer for social media posts be limited to a specific time period and target specific information.
Some users of social media have requested that their attorney argue rights to privacy in regards to social media posts because the user believes the posted information was only shared with ‘friends.’ However, some judges have ruled that no privacy expectation exists with social media especially when one has, for example, 1,000 ‘friends’.
Users of social media need to use caution when posting and keep in mind that even when posting ‘privately’ there is no guarantee that your posts will be kept out of a lawsuit. Anyone involved in a legal matter – whether it be family law, criminal law, employment law, or a personal injury claim – should keep in mind that the use of social media ‘can be used against them.’
Additionally, data collected by fitness trackers such FitBit, is information that can also potentially be discoverable in a claim.
Prior to hiring a personal injury attorney, you want to be certain that the legal team has experience in litigation and trial matters. As evident, your rights to privacy may need to be protected.
The Edward A Smith Law Offices has represented victims of personal injury in California since 1982. Our office is conveniently located in Sacramento. We have successfully resolved many multi-million dollar claims and would be happy to answer any questions you may have regarding a potential claim. We can be reached via telephone at (800) 404-5400 or (916) 921-6400. You can find out more about our office by looking either Yelp or on Avvo, an attorney rating site.