Civil suits are, in large part, brought to pursue financial compensation for those who have been wronged or injured by the negligence or intentional actions of another person. The plaintiffs in these cases are required to prove their case and why they are entitled to compensation for past and future expenses, lost wages, lost earning capacity, and pain and suffering.
Civil cases, though, can all too frequently be derailed or impacted by a parties’ decision to post things on social media. Consider this example: An employee files suit alleging he has been discriminated on the basis of his race. In his lawsuit, he claims that this situation has impacted him so much that he is unable to focus, unable to work, and unable to even leave the home. Sounds like the potential for a strong case, right? Now imagine that this individual’s Facebook page has pictures of him with friends going out on a near nightly basis. Not such a strong case after all.
Evidence comes to light
These types of issues are uncovered during what is called the “discovery phase” of a civil suit. This is where the parties will examine documents and take depositions to find out what happened and how people have been impacted. Discovery is an open process. In Ohio and federal courts, the standard for discovery requests is that it must be “reasonably likely to lead to the discovery of admissible evidence.” That is, evidence which can be presented to a judge or jury during a trial.
With the growth of social media over the last decade, courts across the country are grappling with just how much of a person’s life the other party in litigation is allowed to examine. The general consensus seems to be that even if a user turns their social media settings to “Private,” the material they post is not privileged or protected by civil law notions of privacy. Potts v. Dollar Tree Stores, Inc., 2013 U.S. Dist. LEXIS 38795 (M. D. Tenn. 2013). However, courts are hesitant to provide full and unfettered access to these pages as it would amount to a “fishing expedition” which is prohibited by the rules of civil procedure. Tomkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 389, 2012 U.S. Dist. LEXIS 5749 (E.D. Mich. Jan. 18, 2012). What you should expect, though, is that any posting related to the case will be turned over and examined. Therefore, you should be mindful of what you put on social media before and after filing suit. Most importantly, give this information to your attorney during your first meeting and listen to his/her advice about refraining from posting during the pendency of your case.