Social Media is everywhere. According to Statista at the end of 2017, Facebook had 2.2 billion monthly active users, Snapchat had 187 million daily active users and Instagram had over 230 million accounts. Many top celebrities had well over 100 million followers alone. An incredible 81% of people in the United States have some social medical profile.
Recent news about data theft and unauthorized access to Facebook accounts is no longer surprising although the number of accounts that have been compromised is beyond comprehension. What does all of this mean to the average litigant proceeding with a personal injury claim? A lot!
In virtually every case my office litigates, efforts are made by the defense to access, discover or utilize social media information against the Plaintiff. The things that people post (oftentimes for all to see) defy reason. People post photographs, videos and written commentary that is frequently used by the defense in lawsuits against a person bringing a claim. Our office has found postings by our clients that show them engaged in activities that are either unlawful, in poor taste or that are contrary to their testimony or doctor’s recommendations.
With communications and information being so readily shared on social media, it has become more and more acceptable as a means of communication and Courts are allowing more leeway to parties searching social media in light of its widespread use. Recent cases in Florida have held the discovery of photographs from a person’s Facebook account to be relevant and discoverable. The Courts are allowing Defendant’s access to telephone records, passwords for access to social networking accounts, screenshots of pages from postings and the list goes on.
More and more Courts are admitting the use of data from social media postings to prove allegations in criminal cases and defenses in civil cases. Digital evidence from social media may not be considered hearsay unlike other “statements”.
A well-researched article co-written by the Honorable Bronwyn Miller, a Miami-Dade County Circuit Court Judge, notes, “the widespread, nearly universal, use of social media platforms dictates that data mined from social media postings will be imperative to proof in a growing number of civil and criminal cases”.
The takeaway from this trend toward allowing more leeway to discovery of social media postings is to urge clients to refrain from posting comments or materials on any social media platform that could be relevant to their case. At my law firm, we not only discuss the issues relating to social media with our client at the very first meeting but gain our client’s authorization to conduct our own search of their social media accounts. We specifically advise our clients, both in-person and in writing, about the dangers of creating adverse evidence by social media involvement. We ask them to refrain from posting, unless absolutely necessary for business purposes, to avoid any use by the party against whom the claims are being made. Social media can be used as evidence against you – Be careful what you post!
The Florida Bar Journal, Vol. 92, No. 4, April 2018, A Prolific Landscape: The Admissibility of Social Media Postings.