14 Sep Discovery and the Growing Influence of Social Media
by Ray Foushee
In the always changing world of Twitter, Facebook, Instagram, and Snapchat it is important to understand how these social media sites can affect a lawsuit one is involved in. Cases are won and lost in today’s world simply from what can be found on an individual’s social media accounts. Facebook has over 600 million users and Twitter has over 190 million users. Nearly everyone has some social media footprint that can be exploited. In recent years courts accept that lawyers will utilize social media sites to help in nearly every aspect of a case they are working on. Often, lawyers will find a “smoking gun” on an individual’s social media sites that will effectively end a case.
To begin the search lawyers will often use traditional discovery to find out if a party has social media accounts. This can be done through Interrogatories, Request for Production, and Request for Admission. Account information such as usernames, handles, and even passwords can be requested. In the event that accounts are private a more formal discovery effort may be necessary. It is important to note that lawyers are not just looking at photos or status updates. They are also looking at mood indicators that could contradict a party’s story. Every aspect of social media can help or hinder one’s case.
Most lawyers will not subpoena the actual social networking site. Social networks are concerned with their user’s privacy. Federal law is also in place to protect individuals. The Stored Communication Act is one such act that protects user’s privacy. However, lawyers will often serve very specific discovery requests that tie in claims or defenses in the case to a party. This practice has been found valid by courts.
It is important to keep in mind that in the ever-changing world of social media that what one posts online may not be kept private. In a world where more and more communications are shared online one might not have a reasonable expectation of privacy. It is important to keep in mind that social media could make or break a case one is involved in.