Think Before You Post!: Discovery and Social Media Content

Although progress in the legal field can sometimes be slow, it does occur. The law has, for example, finally become aware of the prevalence and importance of social media in our day to day life. Under the new Texas Pattern Jury Charges, for example, a Court is instructed to admonish jurors as follows:

  • Turn off all phones and electronic devices. While you are in the courtroom and while you are deliberating, do not communicate with anyone through and electronic device. For example, do not communicate by phone, text message, email message, chat room, blog, or social networking websites such as Facebook, Twitter or MySpace.

It should not be surprising, therefore, that in this brave new legal world social media is just one more source for information about actual or potential litigants. And in this new world, although caselaw in this area is still rapidly developing, most courts have reached the conclusion that relevant information posted on websites such as Facebook are discoverable. See e.g. Beth C. Boggs & Misty L. Edwards, DOES WHAT HAPPENS ON FACEBOOK STAY ON FACEBOOK? DISCOVERY, ADMISSIBILITY, ETHICS, AND SOCIAL MEDIA, 98 Ill. B.J. 366, 367 (2010).

While to many inhabiting this online world, the discoverability of Facebook posts and other information may seem invasive of their privacy, courts recognize that to permit a party claiming damages in a public lawsuit for such things loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving defendants of access to material that may be relevant and material. See e.g. Ledbetter v. Wal-Mart Stores, Inc., No. 06-cv-01958- WYD-MJW, 2009 WL 1067018, at 1-2 (D. Colo. Apr. 21, 2009). See also Leduc v. Roman, (2009), 308 D.L.R. 4th 353, para. 2 (Can. Ont. Sup. Ct. J.). Such discovery should, however, be limited by traditional notions of discoverability – allowing discovery of a Facebook profile simply because a party has such an account may easily create a situation where counsel would just be fishing for information:

  • Overly simplistic approaches to social media discovery erode protections of individual privacy and may lead to unfair results in civil litigation. Courts should move away from an overly narrow definition of privacy and should instead view privacy concerns on a spectrum. Privacy issues arise from the sheer scope and quantity of data available in a social media account, and unfettered access to this volume of detailed data, in the aggregate, may itself constitute a valid privacy concern.

McPeak, THE FACEBOOK DIGITAL FOOTPRINT: PAVING FAIR AND CONSISTENT PATHWAYS TO CIVIL DISCOVERY OF SOCIAL MEDIA DATA, 48 Wake Forest L. Rev. 887, 889 (2013). See also Leduc v. Roman, (2009), 308 D.L.R. 4th 353, para. 32 (Can. Ont. Sup. Ct. J.). Texas decisions, although there are limited on the subject, favor this approach. In In re Indeco Sales, Inc., 2014 Tex. App. LEXIS 11859 (Tex.App.—Beaumont 2014, no pet.), for example, the Beaumont Court of Appeals held that a district court did not abuse its discretion by granting an injured plaintiff’s motion for protection as to a discovery request seeking information, data, posts, and conversations from plaintiff’s Facebook page, because the request sought every photograph posted since the accident, regardless of when the photograph was taken, and another request seeking all posts or message she sent or received, regardless of topic.

The message to take from all of the above is this: no matter what your privacy setting may be, nor how private or sensitive you think your social media posts may be, they are subject to discovery in lawsuit like any other information. Users should limit any discussions of pending litigation in that setting, and think before they post – is this information they would want a judge and jury to see?

That this charge mentions MySpace is indicative of just how long it takes for new rules and directives such as those found in the Texas Pattern Jury Charges to may their way through their respective committees and into publication and open use.