How Facebook or Twitter can Kill your Case

Many people have come to see social networks, especially Facebook and Twitter, as platforms from which they can share all of their thoughts and opinions. They often do so believing that the information they post is protected by the social networks’ privacy policies. That can be a dangerous assumption when it comes to posting information, thoughts, or pictures having to do with a case.

There is a world of difference between what a social network may define as “private” and what the law will protect from discovery. Discovery is the process by which opposing sides learn about the evidence that the other side may present. Litigants (participants in lawsuits) may also use discovery to secure admissions they might use to their own advantage.

Generally speaking, the scope of discovery is broad. The mere fact that evidence may not be admissible at trial does not mean it is not subjected to discovery. Information is usually protected from discovery if it is privileged or otherwise confidential – i.e. if it falls into a special class of information that the law recognizes as protected from discovery. Privileges include attorney-client privilege, doctor-patient privilege, spousal privilege, clergy-penitent privilege, and a few others. NEVER make assumptions that certain information may be privileged. Some privileges are stronger than others, privileges may easily be waived (such as by disclosure to third parties), and some may not apply where one might reasonably expect they would.

Disclosures on social media, even within “private” networks, are seldom privileged. Civil attorneys are increasingly savvy about the fact that their clients’ opponents may speak all too openly on Facebook or Twitter about the cases they are involved in. There are stories from all corners of the continent about attorneys using their opponents’ Twitter or Facebook posts against them.

Litigants should not expect to be able to seek shelter behind partial disclosures of Facebook or Twitter posts. Some attorneys, who have learned to distrust the candor of their opponents’ disclosures, directly subpoena Facebook or Twitter records from the social media companies themselves. Dodging discovery obligations is always a bad idea (it can expose you to sever sanctions), and in the age of e-discovery it can be downright stupid and highly embarrassing.

The moral of the story: be very careful what you Tweet. Beware the angry, vengeful, or boastful Facebook post. Remember that once it is written, you usually cannot retract it.

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