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Users Beware: How Social Media Can Impact Litigation

Posted on March 28, 2016 in

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Social Media is everywhere.  People of all ages use social media to check in, be in, show off, and go off.  More and more our society is becoming engrossed with social media, constantly posting to Facebook, Instagram, Snapchat, and Linked In, navigating social media in elevators, restaurants and even behind the wheel of the car.  With new social media applications becoming available, staying connected will continue to take on new meanings.  These virtual venues for staying connected can be entertaining and harmless.  However, when it comes to litigation, social media accounts can be a useful resource for opposing parties and their capable counsel.

Social media has evolved into a useful tool for communicating information and managing perception.  Invariably, the images and comments displayed (and those omitted) relay messages regarding the user.  They convey the user’s appearance, interests, values, and accomplishments.  The more information available social media, the more conclusions can be drawn about you, your values, and your lifestyle.

Whether you post family photos or “selfies,” the images on your social media site reveal not only your appearance but also, how you want others to view you.  Social media profiles reveal friends, professional contacts, current and previous employers, schools attended, and recent purchases or vacations.  Often social media profiles include information about your political views and affiliations, hobbies, interests, and places recently visited.  What’s more, other users can post messages and images to your social media account.  As such, social media accounts contain a wealth of information, rich in value and ripe for the picking by potential litigants and their attorneys.

Criminal defense attorneys know all too well that suspects are often identified through social media.  Police are often able to identify a suspect’s associates, vehicles, weapons, and favorite hangouts with a few strokes of a keyboard.

Rapper 50 Cent, who filed for bankruptcy protection, was ordered to appear in Court after he posted photos showcasing wads of cash.  The judge expressed concern about 50 Cent’s truthfulness regarding his financial condition after the photos showing large amounts of cash were posted on the rapper’s Instagram account.  These posts, which his attorneys will likely chalk up to “branding,” may be the death knell of 50 Cent’s bankruptcy.

Likewise a bankruptcy debtor or judgment debtor who claims to have no assets of value, can be called to question donning expensive jewelry or designer pieces exhibited in their social media accounts.  Often seemingly innocuous images of family parties reveal unaccounted for assets of value such as artwork, sports memorabilia, and jewelry.

The information in your social media accounts may not be obviously damning but under the right circumstances it may become an Achilles heel.

How can attorneys use social media to benefit their clients?

1. Warn your client: everything published on social media can and will be used against them. Period.

2. Investigate your opponents’ social media sites for information that is useful to your substantive case, collections efforts, and for impeachment.

Remember that most social media sites have privacy settings which restrict access to information: use them wisely.  But keep in mind that the privacy settings alone will not protect your information from disclosure.  Once litigation is anticipated or commenced, all data on social media outlets must be preserved; you may also be required to produce it in discovery.

Post cautiously, wisely, and appropriately, know your audience, adjust privacy settings, and when in doubt, be discreet.

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