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Are “Private” Social Media Posts Discoverable in Litigation?

Are “Private” Social Media Posts Discoverable in Litigation?

Are Private Social Media Posts Discoverable in Litigation?

Often, a plaintiff’s claim will include the allegation that a defendant was involved in the posting of a private social media post. But how can a plaintiff prove this?

Time stamps

Whether you’re a litigator or a client, it’s important to understand how to obtain and preserve evidence from social media sites like Facebook, Twitter, and LinkedIn. These websites will not only disclose basic information about you, but will also contain substantive content that may help prove your case.

In the context of a civil lawsuit, social media posts provide a wealth of evidence that isn’t available in a traditional business record. For example, a poster’s date and time stamp on a Facebook photo could be indicative of his or her being in the office for 30 minutes or more during the day. In a case where the plaintiff is claiming personal injury from a chair being collapsed by a defendant, this information can be of real value.

The most direct route to obtaining social media records is through third party subpoenas. However, that’s not the only way to get the information you need.

Relevancy

Whether or not private social media posts are relevant to litigation is an ongoing debate. However, the recent decision by the New York State’s highest appellate court may reshape the way people view this issue.

Regardless of how much social media is used in the case, attorneys must understand the different platforms to ensure they are able to capture and preserve the most important information. Failure to do so could have severe repercussions for their clients.

Obtaining the most relevant information from social media is a complex process. The most effective way to do this is to obtain the information through existing California discovery statutes.

The Forman court made the point that the most relevant information may not be immediately apparent. This is due to the fact that different social media platforms are designed for different purposes. Some are meant to be temporary custodians of information, while others are meant to be permanent.

Authenticity

Authenticity of private social media posts in litigation is a complicated issue. It can be a problem in civil and criminal cases, especially those involving products liability. As the technology continues to evolve, attorneys must stay up-to-date on the latest developments. To avoid challenges to your social media evidence, you need to prepare a strategy.

Authentication of electronic evidence can be accomplished by showing that the material is authentic. This can be done through direct testimony or a chain of custody. It can also be demonstrated by circumstantial evidence. For instance, the proponent of the electronic communications must show that there is a greater than 50 percent chance that the content was authored by the proponent. In most courts, this standard requires circumstantial evidence. It is less stringent in California and in some Texas courtrooms.

Limiting requests in time and scope

Generally speaking, courts have been slow to compel the production of social media. This is partly because of a general reluctance to overrule a party’s right to privacy. However, recent events have raised questions about the privacy of social media content and how that content can be used in a lawsuit.

The best way to handle this challenge is to make an order that is tailored to the particular controversy under discussion. For example, a party may opt to request only content that dates back to a specific accident. This can be done by negotiating the terms of the discovery with the opposing parties or with the court. In addition to the aforementioned novelty, attorneys should also consider what deponents have posted on social media and whether it would be helpful in proving a defendant’s case.

Refuting a plaintiff’s claims

Defendants in personal injury cases are encouraged to be vigilant about what they post on social media. The opposing party can misconstrue your posts and use them to discredit your claim.

Fortunately, it is often easy to find hard evidence on social media sites. Videos are easily accessible, and it is simple to track down photos. However, privacy settings can’t protect you from discovery.

In some instances, a court may demand that you produce your entire “private” Facebook page. In other instances, you may only be asked to provide the content of your “public” Facebook page. Either way, it is important to be aware of when your account is deactivated and when you have posted and deleted content.

The goal of defense attorneys is to find evidence that discredits the plaintiff’s claims. One strategy is to hire a private investigator. These individuals dig up evidence that shows that the plaintiff is not actually injured.

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