Facebook Posts Can Haunt You: Discoverability in Litigation - Technologist
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Facebook Posts Can Haunt You: Discoverability in Litigation

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

Is it possible that information and photos placed on Facebook pages could come back to haunt parties in litigation? Yes. Will that always be the case? No. Should people nevertheless be careful about what they post? Yes.

In this developing social media age, there has been a judicial willingness to compel the disclosure of Facebook material to the other side in litigation if the material could be inconsistent with the claims made in the case.

Assume, for example, that a plaintiff claimed that as a result of an injury caused by the defendant, she no longer can walk. However, assume also, that her Facebook photos after the injury showed her skiing down mountains, biking and jogging.

In this context, the judge could order disclosure of her Facebook photos, as her injury claims would be undercut, and these photos would be relevant to that extent.

Of course, there is the issue of how to gain access to the Facebook pages of litigants.

Obviously, to the extent information and photos are posted publicly, they are there for the world to see. But if they are not, and only are available to specific "friends," are they private and not to be used in litigation? Well, in at least one case, McMillen v. Hummingbird Speedway, the court ordered that disclosure of the Facebook password of one of the parties so that access could be gained by the other side to the relevant Facebook account.

Certainly, to the extent one side to a case seeks "to friend" the party on the other side by subterfuge, pretending to be someone else or enlisting a third-party to get the job done without disclosing intentions, there could be some ethical problems.

In one recent case, Piccolo v. Paterson, the court refused the defendant's request to have the plaintiff accept a "neutral" friend request for the purpose of analyzing the photos on her Facebook page to compare them with the injuries she alleged. So, this shows that Facebook material will not always be revealed for litigation. However, in the Piccolo case, the judge did not order disclosure at least in part because the plaintiff already had produced other photographic evidence relating to her injuries in the litigation. Had that not been the situation, the judge might have allowed the Facebook discovery.

Long story short, there is a definite chance that wall posts, messages, blogs, photos and videos that show up on social media sites like Facebook could be fair game for discovery in litigation. Thus, it behooves people who believe that they may have a lawsuit coming their way to be careful about what they make available on Facebook and other social media sites. People are getting use to living out loud online, and perhaps a little quiet would not be such a bad thing.

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes.  His Web site is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com.  To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

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