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It is no secret that the internet has made access to information both widespread and easy. This includes both the passive and active personal information that is accessible online. Websites like Spokeo allow you to zoom in on your neighbors’ homes, find out the names of their family members, and even get an estimate of their home value. In addition, websites like Twitter and Facebook let you find out what somebody is doing at all times of the day, and what they have been doing for years. Of course, Twitter and Facebook require active participation by users and only make available what a user chooses to share. Some users make their posts and pictures private or only share with their friends. However, the information exists online just the same. Collectively, all of this information can be used to facilitate the jobs of litigators, depending on which side you’re on, and courts are just now deciding how much of this information should be discoverable and admissible.
Hypothetically, imagine a man who trips and falls at a supermarket. He gets up, dusts himself off, and walks out of the supermarket unharmed. He goes home and gets on his computer and tweets: “I picked up some great produce at the supermarket today.” A few days later he decides he wants to bring a lawsuit against the supermarket. In his complaint, he alleges that the supermarket left water on the floor, which created a peril that led to his fall. He claims that he now has trouble walking because of the fall, and seeks a specified amount of damages to make him whole. Throughout the course of the litigation he goes about his daily life, which includes dancing at clubs and playing softball. His friends tag him in pictures at these events.
Now, the defense is trying to poke holes in the plaintiff’s case. In ancient times the defense would have to hire a private investigator to follow the plaintiff around, or try to squeeze the truth out of various witnesses in depositions. Indeed, these tactics are still available and used, but litigators are learning to go to the internet first. Some users make their information completely public and leave themselves open to all kinds of discovery. Others make their information private, but recent court decisions show just how public these private posts can be.
In a recent Florida decision, a judge limited a defendant’s request for Facebook records about a plaintiff. The judge followed a previous ruling, which held that attorneys could not go “fishing” for relevant information, and instead had to target their searches to information that would actually be essential to the defense of the case. In this particular case the judge limited the Facebook discovery to the those photographs that showed the plaintiff chewing, as it was relevant to the defense of a case about a jaw disorder.
Applying these recent decisions to our hypothetical it appears that the plaintiff might be in a world of trouble. The defense would likely be able to subpoena Twitter for the plaintiff’s tweets, which show that he wasn’t very concerned about a slip and fall when he left the supermarket, and that maybe he just tripped. The defense would also be able to subpoena the plaintiff to turn over any photographs that depict him dancing or playing sports, as this information would contradict the plaintiff’s claim of a walking problem. However, the judge would likely limit the Facebook discovery by not giving the defense full access to the plaintiff’s account in order to prevent “fishing.”
It must be remembered that the internet is ever-changing and courts are struggling to keep up with the ways in which information is made available and how they should regulate discovery. These are surely not the last decisions about social media discovery, and it is very likely that courts of all levels will struggle before ultimately determining the extent to which social media can be accessed for discovery. In the meantime, litigants should be wary of what they make available on social media sites.
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