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Social Media and the Law

June 10, 2015

The use of social medial has a big impact on how some people go about their lives. It also impacts them once they enter the legal arena.

For example, it is now commonplace for employers and defense counsel to scan the social media pages of prospective employees and plaintiffs looking for information as to the person’s activities, interests and character. A Facebook photo of a bleary-eyed applicant with an empty tequila bottle will surely curtail his chance of being hired. Just as surely, the Facebook page of the injured plaintiff water skiing and belly dancing will extinguish her claims for personal injury damages.

Lawyers and litigants alike should be aware of what they can and cannot do with social media information so they are not unpleasantly surprised during the legal process.

As more and more users log on to Facebook and share personal information with “Friends,” social media posts, particularly information posted on Facebook profiles, become increasingly prevalent in discovery requests. Monthly active users totaled 1.28 billion as of March 31, 2014, which shows an increase of fifteen percent from last year. See Facebook Reports First Quarter 2014 Result, (last visited May 28, 2014). “In the aggregate, users collectively update their ‘statuses’ . . . more than sixty million times each day. Individual users create on average ninety pieces of content every month (photos, status updates, comments or other posts) with fully half of all Facebook users accessing their individual profiles on a given day.”

Courts have been forced to adapt to discovery requests for parties’ Facebook user information and to formulate standards for granting such requests. A Pennsylvania court has held that information contained in the “public” portion of a user’s Facebook profile is discoverable; however, material contained in a “private” portion of a user’s Facebook profile must show something more – a “factual predicate” – before it is discoverable. While several New Jersey courts have permitted or denied discovery requests for Facebook information, no court has set forth a standard by which to determine discoverability.

Parties unaware of the nuances of discovery of social media sites may be tempted to delete information from a website so as to prevent it from having to be produced in discovery. That could be a costly error. For example, a lawyer in Virginia was suspended from practice for five years and ordered to pay sanctions and attorney’s fees when he wrongfully advised a client to delete damaging photographs from a Facebook account. Lester v. Allied Concrete, CL08-150 (Charlotte, VA Circuit Court 2011). The court viewed the conduct as sanctionable because it was deemed to be the destruction of evidence. Parties, with the assistance of their counsel, should determine whether they have an obligation to preserve evidence before deleting it from a social media website. That obligation to preserve evidence typically arises when litigation has been commenced or is contemplated. On the other hand, it is generally permissible to change the privacy setting on a social media page, and probably prudent to do so to prevent giving unnecessary access to it.

As the law surrounding social media accessibility evolves, litigants and parties will need to keep up so they are as informed as possible, and not putting themselves at risk.

For more information, please contact David F. McComb at dfmccomb@zarwin.com.


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