Social Media: Key Evidence in a Technology Driven Society

Author: Kimberly A. Potter

“Social media” fifteen years ago was an unknown expression that has now infiltrated most people’s daily lives. The rise of social media outlets brings with it a host of issues forcing traditional legal concepts to evolve to keep pace with technology. The effect that Facebook, Twitter, LinkedIn, or MySpace (just to name a few) has on litigation varies from jurors tweeting during trials and litigants posting potentially revealing images and status updates that cast doubt on their claims to parties making disparaging comments about judges and lawyers regarding their cases on Facebook.

Accessing someone’s Facebook, Twitter, or MySpace records could wield incredible power in pending litigation; particularly when elusive damages are at issue. A claimant’s case could be irretrievably harmed by the discovery of Facebook or Twitter posts showing the claimant engaged in activities suggesting that he or she is not really injured. For instance, a claimant posting about scuba diving or playing golf while simultaneously alleging that he suffers terrible back pain could be quickly discredited by the disclosure of those records.

The question, then, is how does counsel access those records? And, even if those records are discovered, how do you get them admitted at trial?

Obtaining social media records is complicated, to say the least. The national trend is to permit access to those records provided counsel sets forth the traditional discovery notions of relevancy and whether that information will lead to the discovery of admissible evidence. But, given the potentially voluminous quantity of postings and twitters involved in a person’s account, problems then arise over how much data will be turned over, by whom, and whether that information is truly “private.”  Facebook’s user agreement, for instance, provides that even information placed on the private sections of one’s account can become part of other individuals’ profiles and in effect become public. “Facebook users are thus put on notice that regardless of their subjective intentions when sharing information, their communications could nonetheless be disseminated by the friends with whom they share it, or even by Facebook at its discretion.”

At least the argument can be made that a litigant’s Facebook account records pertaining to posts, photographs, and other data is discoverable if relevant to an issue in the litigation or will lead to other admissible evidence. But, even if counsel obtains those records, are they admissible at trial? That issue arises in the context of authenticating that the posts and other data actually belong to that specific person. It becomes prudent, then, to lay the foundation early on in the discovery process that an account belongs to that person and that his or her posts, tweets, etc., were indeed authored by him or her.

In short, a person’s involvement in social media outlets is certainly a relevant consideration when litigating particularly when subjective damage claims are involved. In the poetic words of a federal judge in Texas, it is “voodoo information.”

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