November 2024

• Social media use continues to grow across a variety of platforms.
• As a result, they have become prime targets for lawyers to use as evidence in litigation.
• Please be careful, therefore, and think before posting on social media. Do not let your post come back to hurt you later.

Social media is difficult. Not how to use it – I think we all generally understand that part. But more in the social utility of it. Obviously there are some great benefits – connecting with other people, keeping family updated, staying up to date on breaking news, even possibly having meaningful discussions. But despite that, I think that social media may be a net negative for society as a whole. Or, at least, sometimes it seems that way. 

Today I want to talk about another potential negative consequence of social media – having it used against you in litigation. As litigation matures and social media grows up, we are seeing it happen more and more. So lets talk about it.

Discovery is a Vital Part of Litigation

In Texas, as in most other jurisdictions, the discovery process is a critical phase of civil litigation. During discovery, parties exchange information relevant to the case, including documents, emails, and electronic communications. With the rise of email and other forms of electronic communication, discovery has exploded in both volume and importance. And that can include social media has become a key source of discoverable information.

Social media platforms like Facebook, Twitter, Instagram, and LinkedIn often contain a wealth of personal information, including photos, videos, and written posts. These posts can reveal a person’s thoughts, feelings, and activities, which may be relevant to a legal dispute. For example, a post bragging about a recent windfall could be used to impeach a witness’s testimony about their financial status. 

Its quite possible, therefore, that opposing counsel can ask for and get social media information from a party. To obtain social media content during discovery, attorneys may use various methods, including:

• Download it – A lot of social media is public. The first step in litigation is often to check a party’s social media posts and see if there is anything relevant. 
• Direct Requests: Attorneys can send written requests to the opposing party or third-party social media platforms to obtain specific content.
• Subpoenas: Subpoenas can be issued to compel the production of documents, including social media content.
• Court Orders: In some cases, courts may order parties to produce social media content, particularly if it is relevant to the case and there is a reasonable expectation of privacy.

Using Social Media Posts as Evidence

Social media posts can contain a wealth of information. As a result, the content can be useful in all types of litigation, including: 

• Defamation: Defamatory statements made on social media can give rise to civil lawsuits.
• Contract Disputes: Social media posts can be used to establish the intent of parties to a contract or to demonstrate a breach of contract.
• Employment Discrimination: Posts that reveal discriminatory attitudes or behaviors can be used to support claims of discrimination or harassment.
• Personal Injury: Social media posts can be used to impeach a plaintiff’s claims of injury or to establish contributory negligence.

And that’s just scratching the surface. It never ceases to surprise me what people are willing to put in a social media post. 

But its not always easy for a lawyer to get social media information into evidence. There are strict rules about what can be admitted. Thus, when trying to get a post admissible, we need to consider: 

• Authenticity: The authenticity of the post must be established, including the identity of the poster and the date and time of the post.
• Relevance: The post must be relevant to the issues in the case.

Tips for Using Social Media Responsibly

To minimize the risk of legal trouble, it is important to use social media responsibly. Here are some tips:

• Be Mindful of Privacy Settings: Review your privacy settings on all social media platforms to limit who can see your posts.
• Think Before You Post: Before posting anything online, consider the potential consequences. Avoid making inflammatory or offensive comments.
• Be Cautious About Tagging Others: Tagging others in posts can expose them to legal risk, so be mindful of who you tag.
• Avoid Sharing Confidential Information: Never share confidential or sensitive information on social media, such as trade secrets or privileged communications.
• Monitor Your Online Reputation: Use online reputation management tools to monitor your online presence and address any negative content.
• Consult with an Attorney: If you are involved in a legal dispute, consult with an attorney to understand the potential impact of social media on your case.

By following these tips, you can help protect yourself from legal trouble and maintain a positive online reputation.

Conclusion

Social media has undoubtedly transformed the way we communicate and interact. However, it is important to be aware of the potential legal implications of social media use. By understanding the discovery process and the rules of evidence, and by using social media responsibly, you can minimize the risk of legal trouble and protect your interests.