In addition to Facebook and Twitter, there are more social media platforms than one can count. While invaluable to those who wish to immediately communicate to friends and family, social media has become an evidentiary tool in Courts. All social media postings are subject to the discovery rules of local courts, and have been used most frequently in divorce and personal injury cases. One report estimates that Facebook postings have been introduced as evidence in as many as 60 percent of recent divorce cases.
The Courts have been far from uniform in how they approach social media discovery requests in civil cases. During the discovery process of a civil proceeding the adversary can request information from the party to the litigation, or may seek to get the same information from a social media “friend.” Generally speaking, if the request is fairly specific as to period and perhaps content it will be granted. Judges have been steering clear of “fishing expeditions” where one party is required to produce his or her login information to their adversary during the proceedings. However, some judges still allow the practice.
Contrary to common belief, a party in a civil case cannot obtain non-public social media from the media provider (e.g. Facebook). The provider can only produce basic information such as IP address and dates of connections to the website; the media provider is not allowed to produce non-public content.
When in litigation, be mindful that evidence spoliation rules forbid “cleaning up” your social media. Doing so is a quick way to getting on the judge’s bad side, being sanctioned in court, and even losing the case.
What you post on social media is likely to be visible for eternity. The lesson here is to treat postings on social media as if you are hand-writing a letter. Take the time to make thoughtful postings, think twice about posting that Mardi Gras picture on your phone!