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Are There Risks to Using Social Media in Litigation?

Are There Risks to Using Social Media in Litigation?

Even though you might believe that your account is private and you have ensured your privacy settings are switched on, you may be surprised to learn that your social media posts are not actually private. Social media has quickly become an instrumental tool in litigation, in many different types of cases such as personal injury, criminal charges, family law matters, employment law, and much more.

The content in the opposing party’s social media posts may contain an array of self-incriminating evidence, such as unflattering statements or photos, threats made against their ex, profanities, or any other statements that could undermine their case in court. This can have devastating results for the content’s original poster. As an example, a post about enjoying a vigorous hike over the weekend might raise some eyebrows over whether or not the victim of a car accident is still in pain. In another example, a parent who is visibly putting his or her child in danger would appear to be unfit to parent and is acting outside of the child’s best interests.

On most social media accounts, one does have the option to delete their content or even remove their entire profile altogether. This is in an effort to better portray their online personalities, offering up only the highlight reel, to hopefully prevent others from using information against them. Unfortunately, this tactic almost always has the opposite effect.

In any situation involving litigation, all parties have the legal obligation to protect any evidence that may be relevant to the case. This extends to social media. Failing to preserve social media posts and other pieces of digital evidence can have catastrophic results when the case is sent to litigation. The court may penalize anyone who deletes relevant evidence, whether or not the person did this on purpose. Most attorneys will recommend that their clients avoid posting anything new and staying away from social media while their case is underway. More specifically, it is recommended that you try not to modify or delete past posts, even if you believe that the content has nothing to do with your case.

Because social media changes so rapidly and on a constant basis, legislators are often left in a quandary over how it can be used during litigation. The courts will usually reject litigants and their attorneys who try to gain access to the other party’s passwords, as there are many other ways to uncover the information that feels is considerably less intrusive. As an example of just how intrusive the matter is, in 2015, Virginia General Assembly passed a law that prohibited employers from gaining access to candidates’ accounts or asking for personal passwords, or adding a supervisor as a friend so as to be able to view their posts.

The federal Stored Communications Act offers further protection in that non-government entities cannot compel social media companies to disclose information in a court order or pursuant to a subpoena. Social media and digital evidence can be used in other ways in the courtroom. The judge may ask to see your text messages, Facebook posts, or photos from your Instagram.

The preferable and most professional mode of presenting digital evidence in the courtroom is forensic collection, which ensures that data and meta data is preserved in a read-only format. This will allow far greater access to information that is more compelling and reliable than a simple screenshot, and ensures that the evidence is intact and has not been tampered with. Having a digital forensic expert may be worthwhile in cases where intact, pristine digital evidence is crucial.

Should you have any questions about social media and digital evidence, be sure to discuss this with your attorney. Davies, Barrell, Will, Lewellyn & Edwards, PLC has over 40 years of experience and knows how best to decipher which evidence may be useful or relevant, and how social media should be used during litigation.

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