Social Media & Discovery

Anything written or posted in social media (via smart phones, laptops, desktops,

etc.) may be discoverable in litigation and used at trial.  Any electronically stored

information (ESI) describing events occurring at work or describing ones feelings

or thoughts, could eventually be seen by a jury.  If documents are prepared only for

an attorney for expected litigation, then they may be protected from disclosure, if

they are not posted on any social media or disclosed to others not covered by an

applicable privilege against compelled disclosure, and if the employer’s computers

or email were not used.  But it is now common in litigation for a former employer

to hire an IT company to search the web (and smart phones, laptops, desktops, etc.)

for everything a plaintiff has written, posted, saved, etc.

For example, if you make a claim for emotional distress damages, what better

evidence of your emotional condition than a daily log you wrote on your social

media page?  It may show you chatting with friends or posting about your feelings;

it may even show your postings about what occurred at work at the company.  So a

former employer will almost always request in discovery any ESI discussing in any

manner how you felt at the time, especially if you chatted or posted about the

events when they occurred.  Social media and ESI are often used against the

plaintiff in litigation.

Users can filter communications with the settings on most social media, for

friends-only, etc.   Privacy can be re-set to highest, and co-workers and the former

employer can be de-friended or blocked.  But accounts and ESI should never be

deleted if litigation is possible.  If litigation is possible, a claimant may wish to

download and save a copy of any social media account and any other ESI, to a disc

or flash-drive, as claimants are required to preserve potential evidence, even if not

yet involved in litigation.

Information found on social media websites is not private, and it is usually

discoverable.  Information shared with others, be it verbally; in writing via email,

text message or letter; or even posted on-line, could also lead to the loss of the

attorney-client privilege.

Without first talking to an attorney, do not attempt to delete any social media

accounts, in an effort to avoid having anything posted there used against you, as

doing so can lead to sanctions for destroying evidence.  And you may wish to

refrain from communicating on any device provided by the employer, or any

computer, smart phone, or other device that is shared with someone else.  And in

addition, you may wish to avoid using a work email address or a shared email

account.  It is usually best to only use a private email account that is password

protected and only accessed by you, from your own personal smart phone or

computer.

You should take all actions necessary to assure your email accounts, devices, and

all social media sites are secure and protected.