Social Media Information a Growing Form of Discovery in Many Lawsuits

Twitter and Facebook LogosSocial media is growing to become a regular part modern society. With over 900 million active Facebook users and 500 million active Twitter users, western society is embracing social media as a means of communicating with friends and family and keeping in touch with old acquaintances.

However, there is a potentially negative aspect of this communication. Information on social media, even if it is marketed as being private, stays on hard drive archives in perpetuity, and this information is generally accepted as being admissible in court.

Social media in the courtroom

Social media is considered fair game for the discovery process of courtroom proceedings. Lawyers are trained to acquire information to help their clients, and Twitter postings or Facebook updates provide a valuable testimony about the poster’s character or activities.

The issue of subpoenaing social media sites for evidence is currently being debated within courtrooms, but many lawyers are able to acquire this information by subpoenaing third parties or using other techniques.

Divorce and family court

Those facing divorce court or child custody hearings will want to exercise caution when using social media platforms. They will want to consider how their activities will look to a neutral party that does not know them personally. While a particular inside joke might be harmless and fun for friends who understand the poster’s intent, a judge or jury might be unaware of the context that renders a seemingly offensive post funny. Sarcasm and irony do not always translate well in a courtroom, and trying to explain a joke to neutral parties can be a difficult task.

Insurance fraud

Social media’s impact goes beyond family and divorce court proceedings. Insurance companies are increasingly mining social media information as evidence in criminal insurance fraud cases. While a claimant might argue that his or her leg is injured, photographs from a skiing trip might indicate otherwise. A claimant might argue that he or she is unable to work because of an injury received on the job, but a photograph of him or her on a boat might reveal that their injury is, in fact, non-existent. The legal and ethical aspects of gathering this information are still in a gray zone, but many judges have granted complainants substantial access to this information, and some judges have even required that defendants hand over their passwords to social media platforms.

Social media and society

Many still think of social media as a private haven isolated from their work and legal life. Facebook and Twitter are considered by many to be strictly informal, fun platforms where they can post anything they want without being judged harshly. With the growing ubiquity of social media, this perception is slowly changing. Employers are often examining the social media properties of prospective employees and using their impressions to judge applicants.

Social media can be an enriching and useful platform to maintain contact with friends and family. However, a general rule, formerly applied to email, is starting to circulate for this new platform: Do not post anything on social media that you would not want the whole world to see. Assuming that everything posted on social media is available to the public at large is a technique that can ensure that one’s postings will not come back to bite them in a courtroom, boardroom or other setting where one’s character is considered and intent is difficult to explain.

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