Status Update, Hashtag, Like, Tweet, Retweet, Instagram, Message, Check-In, and Share.
These are all social media actions that can truly impact any case. Most clients don’t know when they walk into an attorney’s office and begin litigation that each piece of information on their social media accounts is discoverable. These pit falls often come into play in personal injury and family law cases.
For example, I had a colleague who tried a personal injury case and the plaintiff had “checked-in” to a paintball field days after his alleged injury and continuously “checked-in” to the gym with “#killingit.” Needless to say, that Plaintiff was zeroed out on damages, despite the Defendant being at fault for the accident.
Additionally, I had a child custody case where Father was trying to get more time with his children and had concerns with Mother’s alleged drug use. My first exhibit at the hearing was Mother’s entire Instagram account, which was full of pictures of marijuana and drug based slogans. The Judge was not pleased and ordered Mother to take an immediate drug test following the hearing.
As attorneys, it is our obligation to warn our clients of these dangers within social media, but also to not engage in any ethical violations. The first thing I tell my family law clients is to either censor their social media accounts moving forward or to make them inactive during the pendency of any case. However, I also warn my clients to not delete any accounts, as that is considered spoliation. If someone intentionally destroys their social media account, such as deleting the entirety of their Facebook with litigation on the horizon, the Court could potentially sanction the Client for this destruction of evidence.
The second thing I do once I have been engaged to represent a client is search the opposing party’s social media accounts, if any exist. Many people do not make their accounts private, and I usually find evidence within the opposing party’s Facebook or Instagram that will be helpful at a hearing. Additionally, if and when I send out Requests for Production, I always include this request: “A complete print out of the activity on your facebook page, which can be obtained by logging into facebook, clicking the “down arrow” on the upper right hand side of the page, and selecting activity log. Please make sure that “all” on the upper left hand side of the page is selected prior to printing out the activity log.” This request ensures that all messages, posts, status updates, and check-ins are included in the printout.
While social media is intended to be fun and is a great tool for staying connected, make sure you and your clients are cautious when posting things in cyber space. You never know who could access your prior posts in the future and how those posts could be used against you.