Many individuals around the nation are regretting their decisions to post on social media and the rest of us should take note. Employers are now attempting to access the social media accounts of potential employees in the hiring process, Universities are using social media to weed out applicants, and social media is being used by all parties in lawsuits. The focus of this article is to warn of the dangers of posting that photo, status update, or comment while in the midst of a lawsuit.
Typically when involved in a lawsuit the rule of thumb is to avoid discussing your case with anyone who is not your attorney. Posting about your lawsuit or anything involving the facts of your case on social media violates this rule and creates a permanent record of whatever you have decided to share. When involved in litigation there are a number of factors that can contribute to the outcome of the case. Without having legal training and experience it is hard to know which of those factors may be affected by your post on social media thereby damaging your case.
The job of a lawyer is to collect evidence proving their case and disproving the opposing parties case. In the past certain aspects of evidence collection was often difficult. How could you prove what someone was saying and doing in the privacy of their own home or social group? Today most of what people say and do with their friends and social groups is being captured in Facebook messages, photos, tweets, and e-mails. It is all too common for people to ruin their case by posting seemingly innocent information on social media. The litigation process is often very involved with paralegals, private investigators, and attorneys who will all attempt to use the internet to find out everything they can about you. How big is your home? What type of vehicles do you drive? Where do you work? Have you disclosed any information regarding your injuries? All of this information can be used against you during your case. Worse, the information may be taken out of context by the jury and hinder your case.
For example, a truck driver posted a picture on social media while in his truck. The picture had a caption reading, “My new bumper. Now pull your ass out in front of me.” The truck driver found out the hard way that social media can come back to haunt you. He later ran into someone on the highway and the Facebook post along with other postings of him using his phone while driving down the highway were used against him in settlement negotiations. The case later settled in favor of the driver he hit.
There was the man in Florida who lost his age discrimination settlement of $80,000 because his daughter posted about the outcome on Facebook in violation of the confidential settlement agreement. Willie Moore learned the hard way that a picture of him on Facebook holding piles of cash could be used against him as evidence that he could afford to pay more in child-support.
It may be tempting to think you can avoid the risks by changing your settings to private and only sending information between close family and friends. While this particular remedy is better than posting for the whole world to see, ultimately it may not matter what your privacy settings are. This is because during the discovery process of litigation the opposing party may seek all social media posts, messages, and photos concerning the incident. An even more cringeworthy trend is when the opposing party seeks to force you to disclose your social media usernames and passwords. I am aware of multiple decisions in other states where the courts have ordered the parties in litigation to disclose their social media log-in information. In ordering the Plaintiff in a personal injury case to turn over her Facebook username email and password a court in Pennsylvania held that she:
Has no privacy rights in her Facebook postings, and there is no general Facebook social networking privilege. Furthermore, she cannot claim the protections of the Stored Communications Act. We further note that, in filing a lawsuit seeking monetary damages, Largent has placed her health at issue, which vitiates certain privacy interests. Any posts on Facebook that concern Largent’ s health, mental or physical, are discoverable, and any privilege concerning such information is waived.
While I am not personally aware of any decisions in Missouri that have gone so far I have had opposing parties attempt to discover username and password information from my clients. I have argued and will continue to argue that this information is private and should not be discoverable from my clients but I can make no promises on where the courts will ultimately end up on this issue. Therefore, the risks associated with using social media while involved in litigation are best avoided.
If you are unable to heed my advice to avoid social media while in a lawsuit or you are not involved in a lawsuit but anticipate being involved in one here are some tips that may help decrease your risk. (1) Do not talk about the case or potential case in any of your posts or private messages (hint: they are not actually private); (2) Do not accept friend requests from people you do not know; (3) Do not post videos of yourself or enable others to “tag” you in photos; (4) Change all social media settings to private; (5) Do not post anything that may allow a jury to have a unfavorable impression of you.
At BCU Law Offices, LLC we are committed to protecting our clients. If you need to speak with an attorney about your rights or how you should proceed feel free to call our office for a free consultation.