Even Deleted Material on Social Networking Sites Can Be Used Against You in Court

William Bill Hurst -Your Indiana Lawyer

No matter how familiar this world gets with social media sites such as Facebook, Twitter and MySpace, it still seems that some people ignore an obvious truth: the words, ideas, pictures and things you put online can be used against you. Just as personal communications, recollections, notes, and even a person’s diary are discoverable in a civil lawsuit, so too are most things online. This is true even if your “privacy settings” are turned up to their limits.

It is old news to the legal community that Facebook, Twitter, Myspace and other such networking sites can either be a goldmine for incriminating knowledge or a landmine waiting to ruin a case. Numerous courts have come out reinforcing the idea that content posted on such sites is discoverable, usually with the justification that anything posted on such an account is quasi-public and thus there is no real expectation that the material is private. State and Federal Courts have been ruling that the opposing party may be given access to private photos and comments that are relevant to the various claims being made by the other side in a lawsuit. In Indiana, a federal judge ordered production of requested social media on the pretense there is no expectation of privacy on anything that is posted on Facebook and other social media sites by the litigants. EEOC v Simply Storage Management, LLC, 270 FRD 430 (S. Dist. Ind. 2010). Cases are also replete with instances where testimony from a party or a witness is contradicted by social media produced by the other side. An accident victim claiming pain, suffering, and near paralysis can easily be painted as a liar by Facebook pictures on the sandy beaches of Cabo San Lucas.

As technology becomes more mainstream, details of the extent of discoverability are still being fleshed out. Recently, in the case of Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010), the New York Supreme Court held that not only were private posts accessible by the other party through discovery, but even deleted material was accessible. As some privacy advocates will tell you, even after you delete material on a social media site that material will usually be stored (sometimes indefinitely). For example Facebook’s privacy policy states that “[r]emoved and deleted information may persist in backup copies for up to 90 days, but will not be available to others” (it should be noted that there are subsequent privacy policy statements about cooperating with legal requests). So in the instance of material off Facebook, material would typically remain discoverable for up to 90 days even after being deleted.

The general rule seems to be if you put it on the internet, you have no expectation of privacy, and therefore it’s likely going to be discoverable even if you try to hide it. The moral of this story is don’t put anything on the internet that you don’t want to be seen, even if you are planning on deleting it. One may also assume that in this current day and age insurance companies will start monitoring and copying social networking accounts immediately after an accident occurs.

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1 Comment

  1. Jim Lane says:

    I agree with you about the discoverability of social media material. Here’s a twist: I’ve been served with a demand that my client provide his user name AND PASSWORD for Facebook and all other such sites. This would let the adversary view, not only my client’s site, but pages on my client’s friends’ sites that they want restricted to being viewed by their friends. It would even let the adversary impersonate my client online, by logging in as him and posting in his name. As against that, I suppose they’ll argue that they need the password to make sure they’re getting access to all deleted material. Is there some other way their access can be ensured? What are your thoughts on the demand for the password?

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