A Guide to Social Media Discovery

Imagine this: You are relatively new to the legal field. You are working an internship at a firm in New York State. One of the attorneys gives you a task: To look up the social media accounts of an opposing party. So you log onto your Facebook account and see that there is nothing on the page. You consider this odd because the attorney who gave you the task said that their client looked earlier in the week and found some salacious stuff. You see in the corner, Facebook telling you to friend them in order to see everything they have posted. The button tempts you. Do you press that button?

Do not press that button.

Courts are beginning to reckon with social media. Social media is a powerful tool, not just because of the pictures we post and the things we write on it but because those things are perfectly curated by the user, a performance of sorts. In a sense, a person’s social media is a window into their ego. A portrait of how the user wishes other people to see them.

Take Forman v. Henkin as our guiding example. In that case, the New York Court of Appeals considered a few issues relating to social media discovery. In the case, a person who was horseback riding fell off the horse and allegedly sustained brain and spinal injuries that impaired physical activity and motor skills. The plaintiff stated that prior to the fall, she had had a Facebook account that showed pictures of her active lifestyle. Since the fall, however, she had deactivated the account. Defendants moved for unlimited access to the Facebook account and the Court granted limited access for all photos the plaintiff intended to introduce at trial, all photos posted after the accident (except those depicting nudity or romantic encounters) and the time stamps and amount of characters in every message sent since the accident. The first department narrowed this and the Court of Appeals reviewed and reinstated the Supreme Court’s order.

The Court of Appeals stated that “[B]efore discovery has occurred- and unless the parties are already Facebook “friends”- the party seeking disclosure may view only the materials the account holder happens to have posted on the public portion of the account.” So think back for a second. Don’t click that friend button.

Of course, this does raise the question of other social media accounts. What if a site does not have a friend system? Or what if the site is LinkedIn and many of the accounts are view-able without the viewer being logged into LinkedIn? The simple answer is that this ruling translates over. As long as something is publicly available, it is usable prior to discovery.

So what does one do with this information? Think back to how social media is what you want other people to see. Most people want other people to see them as the best person they can be. This can mean flaunting wealth for example. If a person does that, then you can show that there may have been an ulterior motive for them bringing a lawsuit, for example. Your ego is a scary weapon when wielded in the hands of strangers with something to prove.

How may one protect themselves? The simple answer is to review your privacy settings and set your privacy to the strictest settings. Sure, it will make our jobs harder but it will preserve your privacy.

And no matter what else you take away from this, do not click that friend button.







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