Can Your Social Media Accounts Hurt Your Case?
Social media is ubiquitous in today’s society. It is a great tool that allows you to connect with family, friends, and the general public. It allows you to share special moments in your life, and to share interesting stories, photos, or events. It allows you to stay connected even if your loved ones move away. It allows you to meet new people, and forge new friendships.
But as you often hear on the news, social media can also work to your detriment. Familiar stories often make the nightly news: people getting fired because of the content of their social media accounts such as racist/bigoted statements, drug use, or inappropriate comments; and some return from vacation to discover their homes have been ransacked because thieves tracked them through social media. We recently witnessed a collegiate athlete lose millions of dollars and potential endorsement deals in a blink of an eye as his draft stock plummeted at the 2016 NFL draft. Shortly before the draft, a video was posted on Laremy Tunsil’s Twitter account of Tunsil smoking marijuana using a gas mask apparatus. Tunsil was a highly touted NFL draft prospect–who was projected to go in the top 5—and he dropped to the 13th pick because of that video. While Tunsil would not have been the first or the second pick this year (the top two picks were guaranteed, and turned out, to be Jared Goff and the Eagles’ potential savoir, Carson Wentz, respectively), he lost millions of dollars in the process. The difference between the rookie pay scale for the number 1 pick and number 13 pick in the draft? Ironically, 13 million dollars in rookie salary. Although Tunsil claimed his account was hacked, that video would not have existed if the urge to record moments and to share on social media is not so ingrained in our society.
Similar to how employers use social media to investigate their employees or research prospective employees, attorneys have discovered that social media is a great tool to investigate opposing parties, and to wield it as a sword to further our client’s interests. I frequently issue, and receive, standard discovery requests to identify clients’ social media accounts and login credentials. Put simply, your social media accounts can, and will, be used against you if you’re not careful. While the law in Pennsylvania remains unsettled on the extent of permissible discovery of social media accounts, numerous trial courts of this Commonwealth have granted full access to a litigant’s social media accounts where the public portion of the accounts contained pictures, posts, or information relevant to the case.
For example, let’s assume you were injured in a car accident and filed a lawsuit claiming that debilitating neck and back pain prevents you from pursuing your hobbies of engaging in rigorous activities, such as running, sports, or exercising. Let’s also assume that you have a Facebook account that has some privacy settings turned on, but limited photographs and/or posts are viewable by the general public. If the defense attorney was able to find a photograph of you swimming, dancing, or engaging in rigorous physical activity on the public portion of your Facebook account—and you refuse to share the login information to your accounts—the court will likely permit the attorney to gain unfettered access to your Facebook account.
Social media can also be used against you in a commercial setting. I represented a client in a commercial landlord-tenant dispute, where the tenant claimed that due to the landlord’s alleged failures to properly maintain the premises, his equipment was damaged, and that he incurred over $25,000 in replacing the damaged equipment. However, I was able to easily discredit this claim with the help of the tenant’s Facebook account, which contained photographs that clearly revealed that he did not possess the equipment that was allegedly damaged and destroyed. How did I gain access? My client’s kids were Facebook “friends” with the tenant, thereby giving me full access to the Tenant’s Facebook page. The tenant was merely using the dispute and lawsuit as a means to purchase new equipment at my client’s expense. Thanks to the tenant’s Facebook account, I was able to prove that the claim had absolutely no merit, and protect my client from a fraudulent claim.
Short of completely giving up social media, how can you ensure that your social media accounts are not used against you in court? Here are some recommendations:
- If your accounts are public, change the settings so that the accounts are set to private to restrict access and shield it from prying eyes;
- Review your friends or followers list and block the opposing party, and people that may know or are connected to the opposing party, so that they cannot gain access to your private accounts;
- If you are contemplating, or are currently in litigation, don’t post about the case, your claims, your injuries, damages, treatments, etc.; and
- Stop using, or severely limit, your social media usage to avoid giving the opposing party another opportunity to argue access to your social media accounts.
Please keep in mind that you cannot delete information from your accounts that may be relevant to your case or relevant to the defense if you anticipate, or are currently in, litigation. Deleting content may result in sanctions against you in the form of monetary penalties, and/or the dismissal of your case. While there is no guarantee that you can prevent the information contained in your social media accounts from being used against you, you can certainly take steps to make it harder for your opponent to gain access. I urge you to take steps now so that you, and your social media accounts, don’t become your worst enemy.
October 11, 2017
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