THINK BEFORE YOU POST — THE DANGER OF SOCIAL MEDIA TO YOUR POTENTIAL LITIGATION

Any, and every, trial attorney will warn a potential client of the dangers of social media to potential litigation and the drastic effect it can have on the litigation. There are an abundance of good reasons for the client to heed these warnings.

Social media discovery is becoming commonplace in all litigation because careless use of social media outlets can damage, if not completely derail a case by portraying an individual or his or her lifestyle in an inaccurate light. Both sides to litigation will look to websites, Google, and Facebook, among others, to see what information shows up about a litigant, an employer, or a witness.

Although a subpoena for production of certain social media discovery may be subject to being quashed or other limitations, see, Crispin v. Christian Audiger, Inc. (2010) 717 F.Supp.2d 965, social media postings by a party to litigation, which are open to the public and not private, may be subject to discovery and may ultimately be admissible at trial.

In a recent case involving a near drowning at a large charitable event, where plaintiff’s intoxication was at issue, plaintiff had posted numerous photographs on Facebook where he and his friends were at bars, parties, and social events. Each and every photo had plaintiff with a beer or other alcoholic drink in his hand. Some of the photos had inappropriate comments listed. Although most of the postings were before the incident, there were several postings after the accident despite our instructions not to do so. Defendant was able to access plaintiff’s Facebook page and obtained the posted photos. The photographs served to be embarrassing and portrayed plaintiff in a negative way.

Ultimately, the case settled for a significant sum of money as defendant’s social media postings benefitted plaintiff’s case. Photographs and video of the charitable event were posted on defendant’s website and all over the internet showing that the event was out of control, there was alcohol everywhere, there was a lack of security guards, and there were an insufficient number of life guards at the pool.

Be smart. Be careful what you post on Facebook or other social media locations. Don’t put forth a profile that does not accurately tell the story of who you are and what you do; or one that could be misconstrued. Be aware that your posts may end up as evidence in litigation. Confirm your privacy settings are properly activated and uninvited third parties cannot access any of your information on your Facebook page or other social media locations.

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