Facebook and Other Social Media are Fair Game as Evidence
Even though I visit court regularly as an attorney dealing with sensitive divorce and family law matters, I am still constantly surprised at how reckless some plaintiffs and defendants can be with their Facebook and other social media postings.
I can’t tell you how many times I have listened to cases on the docket just before mine and been stunned to hear the opposing side bring up some incriminating photo or statement that was posted on Facebook or another website for the world to see. Why hire a private detective to spy on a soon-to-be ex or a personal injury plaintiff when they sometimes serve up their own damning evidence on a silver platter?
Checking social media websites -- and Facebook is the big one -- is standard practice for opposing attorneys or paralegals to obtain evidence valuable to their cases.
One section of the American Bar Association Model Rules of Professional Conduct (Comment 8 to Rule 1.1) reminds lawyers that they are expected to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology,” including social media. This has been interpreted by many attorneys as an obligation to research the online presence of potential parties to the suit, their own clients, and witnesses when drafting a complaint or preparing for litigation.
A few weeks ago, there was a local case where a divorced father with a past drinking problem was petitioning the court to alter the original judgment to allow his teenage child for weekend overnight stays, using the rationale that he had “cleaned up his act.” His petition was severely hampered after the mother’s attorney presented a post published only a month before on Facebook with a photo of the father at a party drinking and friends commenting on the post that he was “so wasted.”
In another local case, the plaintiff was alleging personal injury and suing for damages based on physical disabilities when the defendant’s attorney disclosed a Facebook posting that included a photo of the plaintiff dragging a deer he had just shot from the woods.
In Romano v Steelcase Inc. in 2010, the court ruled that Steelcase was granted access to the plaintiff’s “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information” because the information sought by the defendant was both material and necessary to the defense of the case. “In this regard, it appears that plaintiff's public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed,” the court stated.
It’s worth noting that individuals involved in legal actions should be conscious not just of their own postings, but also the postings of friends and family.
So always be careful about what you post and be aware of what others post about you on social media. Deleting photos and posts or changing your settings from public to private do not ensure that the information can’t be used in a legal action.