Social Media and Litigation: Three Things You Should Not Do

Almost everyone who is reading this has some connection to social media.  If you are not on Facebook, Twitter, Vine, Instagram or other social media, I would be wiling to bet your kids, spouse, girlfriend, grandkids, boyfriend or someone else close to you is using social media.  And if you are involved in litigation, here are some things you should know about the use of social media.

1.  What you post or tweet lives on forever even if you delete it.   Forensic computer specialists can retrieve it.  And if what is posted on social media  can be used against you, trust me, it will. 

2.  Do not assume because your account has private settings that the information you share will not be revealed during litigation.  As social media becomes more prevalent, insurance company counsel routinely ask for passwords so that they can access your data to see if any of it is relevant to the litigation. For instance, if you claim you can not work because of your injuries, your opponent would be delighted to find pictures of you having spent your weekend at the lake water-skiing.  If you initially refuse to provide your password, the court may order you to do so.  

3.  Even if you do not post damaging information yourself, others may.  In Florida, a father recently settled his age discrimination case which contained a confidentiality provision.  The terms of the settlement agreement mandated he and his wife not share any of the details of the settlement with anyone.  Despite this provision, the father told his daughter the terms of the settlement and she broadcasted the information to 1,200 of her friends on Facebook.  The judge ruled the post violated the terms of the agreement and invalidated the settlement. 

While social media is a great way to stay connected to family and friends, it can be very dangerous in the litigation setting.  The safest course of action is to stay off social media if you are involved in litigation.  If you must post, make sure you would be comfortable with it being read and shown to the judge and jury as it very well may.  And to avoid a situation like the Florida father burned by his daughter’s Facebook post, limit discussions about your case to only your attorneys and those who truly need to know such as treating physicians, etc.