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Litigation and Social Media

July 30, 2021

Many of our litigation clients get confronted with inquiries about social media in the litigation process. Our modern society encompasses use of Twitter, Facebook, Instagram and other media without much thought. A quick picture, a comment, an invitation or a joke are generally considered harmless but one misstep can be seized upon by a savvy defense lawyer, and ruin your claim.

For example, you post a picture of yourself at a bar on the night you were harassed, or you joke about suing your employer in a Facebook post. Even if this was a joke, or you are celebrating your husband’s birthday, or just enjoying your private life, it could give grounds to dispute your claim of emotional distress damages.

In Georgel v. Preece, a 2014 federal court case, the employer asked for extensive social media information, including full URL, user names, passwords, school, networks, birthdays, email addresses, and passwords, for three years for Facebook, Myspace, Instagram, Snapchat, Twitter, Topix, and LinkedIn, along with photographs, videos, applications, postings, wall postings with comments, messages, friends lists, comments, tweets, etc. The Plaintiff argued the requests were overly broad. The Court noted that litigation discovery is broad, as opposed to trial evidence, and “it must first be stated that there is no dispute that social media information may be a source of relevant information that is discoverable. Courts have found, particularly in cases involving claims of personal injuries, that social media information may reflect a plaintiff’s emotional or mental state, his or her physical condition, activity level, employment, this litigation, and the injuries and damages claimed. The Court told the Defendant to narrow its discovery requests, allowed some of the requests, and seemed to split the baby down the middle. In Howell v. Buckeye Ranch, Inc., a federal case in Ohio (2012), the Plaintiff was required to produce social media data that was deemed relevant and ordered not to delete such data. Similarly, in Locke v. Swift Transportation Co. of Arizona, a Kentucky federal case in 2019, the Plaintiff had to produce information relating to physical activities or mental status for a six month period following the incident causing the lawsuit. Defendants analogized Plaintiff Locke’s social media activities to a diary containing information concerning her claims and her alleged injuries and damages.

Bottom line: be very careful about what you post if you are contemplating litigation, or even when seeking employment. Some or all of the social media content is discoverable, and often is taken out of context.

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