There is remarkably little case law on the use of social media in civil lawsuits. While one might presume that, just as a party in a civil lawsuit has no right to go through the physical mail of another party, this would carry over to social media. There is no guarantee that this will be the case. Even in smaller litigated matters it is not uncommon to receive discovery requests asking for passwords to client’s social media accounts, or broad requests for “all posts.” Because of the dangers inherent in allowing someone else access to your social media communications, particularly someone else who has an agenda that is against your interests, we have developed over time some basic advice.
First, if you are not currently making any legal claims, you may delete and clean up your social media sites as part of normal maintenance. Once you are in the positing to make a legal claim, however (such as if you are hit by a car tomorrow) then you have a legal obligation to not alter anything that might reasonably be evidence in your case. This same analysis applies if someone else has sufficient grounds to make a claim against you (you hit someone with your car yesterday); at that point you cannot delete information and there are penalties that could be worse than the claim being made against you for doing so.
If you are already in the position of having a legal claim or having a legal claim being made against you then it is possible to archive most social media information. This should be done. Once this is done and the information is secure in an archived format, you would be safe to alter and delete the information that is shown on your page. We resolve most of our claims for our clients without the need for a lawsuit and therefore we don’t get to the point of having to argue in court of this type of disclosure. We believe, however, that most insurance companies do a basic search of social media for people making claims so that they can better evaluate how to best defend against such claims. Accordingly, we recommend archiving and then cleaning up your posts as you see fit.
Once archiving and cleanup are done then each client needs to make a decision about future use of social media. Obviously, do not post anything that you wouldn’t want a jury to see later. Double check and establish that your accounts have the highest security settings selected. Be aware of exactly who is attempting to “befriend” you on these sites. Be aware that even in chat rooms information can be stored by the provider and is not your information but their information that they can turn over to someone else if an appropriate legal request is made.
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