The Facebook Playbook

By Caitlin Connell

adobe_acrobat_icon To download a PDF of the newsletter, click here.

The social media revolution has allowed us to share more of our lives with friends and family. But the voluntary sacrifice of privacy inherent in social media use has become a valuable tool in a host of litigation situations.

In divorce proceedings or custody disputes, for example, it may prove an unfaithful act or a parent’s fitness; in personal injury cases, it may contradict a party’s claim for physical or emotional injury; and in almost any litigation, it may uncover key communications, admissions, or impeaching facts.

Gaining access to the information in a person’s Facebook profile can pose legal challenges. So potential litigants can influence their situation by taking preemptive action to capture material that could be the target of discovery by lawyers. If a litigant deletes information that can be a major issue for their case, resulting in sanctions.

Our firm moves quickly to save (via printing or a screen shot) all publicly available Facebook information maintained on the subject Facebook profile. Many users do not restrict their profile to privacy settings, but can quickly delete or make private their profile once litigation commences. Our job is to ensure such actions are evidenced, so that our client gets the benefit of potential evidentiary sanctions.

Friends of the litigants can provide the virtual key to the case. Most information that is secured by a privacy setting may be viewed and saved or printed by a “Facebook friend.” This often proves to be the best means for proving the existence of evidence, and also the destruction of evidence.

Also, a discovery request can win identification of all Facebook profiles the user has ever had. A request for each URL – the website that appears when you are visiting the user’s profile page – will allow lawyers to research that profile and where relevant, propound discovery requests for a copy of the profile “download.” It also allows lawyers to conduct third-party discovery to Facebook if necessary. Facebook does not produce user content, but will provide basic user information in response to a subpoena. This is one of many reasons why conducting Facebook Discovery is very tricky, and requires a thought out process.

Discovery of social media is an emerging field and much of the law on accessing information from social media accounts has been written in federal courts and by states other than California. But the potential value of discovery of social media accounts is not in doubt.

Consider the case of Clement v. Johnson’s Warehouse Showroom, Inc. (Ark. Ct. App. 2012) 2012 Ark. App. 17, 9 in which the court found no abuse of discretion in the allowance of social media photographs. Those photos contradicted the plaintiff’s claim that he was in excruciating pain and had a bearing on his credibility. The pictures show him drinking and partying.

Social media can be used to help or hurt a case. The one truism is that in a world full of phone cameras and tag technology, the truth will come out more often with a focused and proven discovery plan.

bar

Caitlin Connell is a business, commercial and real estate litigation associate at Patton & Sullivan LLP. For questions or comments she can be reached at caitlin@pattonsullivan.com.

Back to Resources