Facebook Posts & Pictures … Can They be Used to Destroy my Case?

Everyone seems to be using Facebook for business and private reasons. What happens when you become involved in a lawsuit and the attorney representing your opponent wants you to produce everything you have posted on your FB page? In a recent case that we handled, what appeared to be an innocent comment became a potential problem in the litigation. Be aware of the long range impact of posting something on your social media sites as it could be very detrimental to your lawsuit.

With the fast-developing area of e-discovery social media, including FB, Linkedin, MySpace and others, can lead to potentially harmful items. You need to advise your attorney if you use social media as the things you say, the pictures you post and the descriptions of your interests posted on the web and items you post on your FB page or on other social media are not protected from discovery.

If you have certain items that you have posted about yourself you may find these descriptions coming back to haunt you in your litigation. Make sure that you discuss with your lawyer if you have pictures on your social media that may depict you in a compromising position. Be mindful that if you post something about your lawsuit, it may seem innocent but may be the death note to your case. Redacting items on your FB page or other social media about your injuries or matters relevant to your lawsuit can be used to impeach your credibility and should be used cautiously.  Moreover, with e-discovery rules, once you are in litigation, if you remove negative images or material from your social media site, it could be as damaging as a doctor altering his records after being sued.

A series of recent court decisions shows how courts are handling the issue of the production of social media postings. This is a partial list of some of the recent cases, but should be sufficient to let you know that if you say something about yourself on the internet in FB, you had better recognize that it could come back to harm you in your lawsuit and you better let your attorney know that there is “stuff” out there that might be taken the wrong way so he can be prepared to respond to a discovery request for your social media data. Hope these cases are helpful.

1. Mackelprang v. Fidelity National Title Agency, Inc., 2007 WL 119149 (D. Nev. Jan. 9, 2007). Discovery of social media is allowable, to the extent relevant to the case, but discovery should come from the plaintiff, rather than directly from My Space.
2. Dexter v. Dexter, 2007 WL 1532084 (Ohio App. May 25, 2007). Publicly available posts on MySpace were not entitled to any reasonable expectation of privacy.
3. Beye v. Horizon Blue Cross Blue Shield, 2007 WL 7393489 (D.N.J. Dec. 14, 2007). Discovery of plaintiff’s Facebook and MySpace accounts authorized. There is no reasonable expectation of privacy in information shared with others.
4. Leduc v. Roman, 2009 CarswellOnt 843 (Ont. App. Feb. 20, 2009) (Canada). Refusal to allow discovery of plaintiff’s Facebook account was an abuse of discretion. Social media is not privileged, even if restricted as “private.” A plaintiff must identify any relevant materials posted on Facebook – public or private.
5. Moreno v. Hanford Sentinel, Inc., 91 Cal. Rptr.3d 858 (Cal. App. April 2, 2009). A plaintiff cannot bring an invasion of privacy action concerning republication of information that he voluntarily posted on MySpace. There can be no expectation of privacy in publicly posted information.
6. Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. April 21, 2009). Subpoenas directly to Facebook, MySpace, Inc., and Meetup.com were proper discovery of plaintiff’s accounts.
7. Bass v. Miss Porter’s School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009). Discovery of plaintiff’s Facebook account was proper. Plaintiff’s withholding of relevant information justified sanction of production of entire Facebook page.
8. Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Sept. 21, 2010). Discovery of plaintiff’s Facebook and MySpace accounts authorized. Social media is not privileged, even if restricted as “private.” Social media is discoverable, and has no reasonable expectation of privacy.
9. McCann v. Harleysville Insurance Co., 910 N.Y.S.2d 614 (N.Y.A.D. Nov. 12, 2010). While the defendant had yet to establish entitlement to discovery of any particular item, prospective refusal to allow any discovery of plaintiff’s Facebook account was an abuse of discretion.
10. EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. May 11, 2010). Discovery of plaintiffs’ Facebook and MySpace accounts authorized. Social media has no reasonable expectation of privacy. Targeted social media discovery is not burdensome or oppressive.
11. McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. C.P. Jefferson Co. Sept. 9, 2010). Discovery of plaintiff’s Facebook account authorized. There is no “social network privilege.” Social media is discoverable, and access “should be freely granted.”
12. Offenback v. LM Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011). Discovery of plaintiff’s Facebook account authorized. Social media is discoverable.
13. Katiroll Co. v. Kati Roll and Platters, Inc., 2011 WL 3583408 (D.N.J. Aug. 3, 2011). A party’s intentional destruction of Facebook evidence could constitute spoliation, but unintentional alterations do not. Parties “control” their Facebook pages for purposes of discovery.

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