By: Lisanne L. Mikula, Esquire
Social media has transformed our everyday lives, enabling us to connect effortlessly with others and share information at the press of a button or a swipe of a touchscreen. These virtual interactions, however, have also transformed litigation.
Social media posters publish vast amounts of personal information which may give an opponent in a lawsuit advantages unforeseen by the posters until it is too late. Online activity can identify potential witnesses, establish the habits and personality traits of a litigant and can supplement-or contradict-the facts which a party intends to present in court.
Social media presents a powerful tool for discovering potential evidence, and it has become routine practice for parties in litigation to seek information in discovery relating to the social media platforms used by litigants and witnesses. So long as there exists a good-faith basis to believe that information relating to social media is relevant to the litigation, most courts now routinely permit discovery of social media-regardless of the privacy setting on the social media account or the personal nature of the activity.
For example, in a lawsuit brought against the plaintiff’s former employer for racial harassment and discrimination, a Pennsylvania federal court recently permitted discovery relating to the plaintiff’s participation in a Facebook group-which did not include her co-workers and was unrelated to her workplace-which made jokes and comments about racial stereotypes attributed to members of the plaintiff’s own race. The court concluded that the plaintiff’s postings and “likes” in the Facebook group were relevant to the plaintiff’s credibility in claiming that she was offended by joking in the workplace about racial stereotypes. Further, plaintiff’s social media activity could support other evidence in the case indicating that the plaintiff initiated and willingly participated in racially-charged banter with co-workers.
Even seemingly innocuous social media activity can undermine a litigant’s case. A tweet between friends confirming a get together at a local coffee shop could provide a much-needed tip to a process server who has been trying to serve a subpoena on an elusive witness. An Instagram post of a photo taken at a family party could devastate a plaintiff’s claim that a recent car crash has caused her to suffer persistent severe back pain if the photo shows plaintiff wearing her favorite high heels. A Linked In article touting a company’s increased sales over the past year could undermine an employer’s claim that an employee was let go due to lack of work and not as a result of discrimination.
As critical as it is to ensure that a person’s social media activity doesn’t damage his or her case, it is equally important to make sure that social media activity is not improperly erased or lost, which can result in severe penalties for the destruction of relevant evidence. It is essential that a client is upfront and candid with his or her legal counsel regarding social media activity and seeks the attorney’s advice about past, current and future use of social media accounts.
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