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Social Media in Litigation: Beware of What You Post

By Jennifer L. Morris

Is your Facebook account private? What about Myspace, Twitter or LinkedIn? Your blog? Even with strict privacy settings on an account, such social media may be subject to discovery in litigation.

The public’s use of social media is widespread. Consider that Facebook alone boasts more than 800 million active users, of which 50% log in on any given day. Those users cumulatively upload more than 250 million photos per day, on average. More than 350 million active users access Facebook through their mobile devices. Thus, it seems that social media such as Facebook allows people to communicate more frequently and efficiently with their friends, family and coworkers.

Social media has not only influenced how we interact with each other, but also how lawsuits are litigated. Although parties to lawsuits may argue that their social media accounts should be private, many courts are requiring that such information be produced in response to discovery requests. As such, use of social media discovery has seeped into nearly every type of litigation – from criminal to civil, from personal injury to products liability. However, because technology has advanced more quickly than the law, there are many questions with respect to how and when social media information may be used in litigation.

It is never too early to begin an investigation into a potential litigant’s social media information. Many social media users do not utilize privacy restrictions, making their account information available to the general public. This easy access to information, however, is often limited once litigation begins and the parties are advised by counsel to either restrict access or cease use of the account.

Where an account is not publicly shared, it may be an ethical violation for an attorney (or someone at the direction of the attorney) to “friend” a party or a witness. And although use of subpoenas would be a practical approach, social media providers have consistently been able to successfully quash subpoenas. How then can access be gained to a social media account? Specific information can be sought via written discovery. For instance, a party may request the production of social media postings related to the litigation or a relevant date. However, the most comprehensive access to social media may be sought via authorizations or releases executed by the social media account holder, authorizing disclosure of the individual’s account information.

If a party refuses to comply with a discovery request for social media information, a motion to compel such production may be necessary. The court may look into the relevance of the information on a social networking site or the account holder’s expectation of privacy when determining whether such information is discoverable. Ultimately, more and more courts are finding that such information is discoverable, and that notwithstanding privacy settings, an account holder has consented to sharing personal information with others, as that is the very nature of a social networking account.

Thus, as the law struggles to catch up with technology, it is important for all to be aware that nothing posted online is ever truly private. As a social media user, be conscious of what you post, and as a litigant, be prepared to use social media to the best of your advantage.

Originally published in the Winter 2011 edition of Quinn Quarterly.