By now, most trial lawyers have realized that you need to talk to your clients about Facebook. With The Social Media poised to take the Best Picture Oscar this year, I am not suggesting that trial lawyers need to tell their clients to watch the movie or that they need to join the site. Rather, trial lawyers need to tell their clients to be careful about what they post on their Facebook profiles. In the online era, what you post can come back to haunt you – and it may end up in court and in front of a jury your peers.
Defense lawyers in personal injury cases have taken this lesson and used it very effectively. In a recently reported case, a New York woman claimed in her lawsuit to be bedridden after falling off a “defective” chair; however, her Facebook posts and photos depicted her smiling happily in front of her home during this same period of time. As you can imagine, this evidence was detrimental to her injury case. This cuts both ways, as there are countless stories of defendants in personal injury cases posting how intoxicated they were the previous day, when they were involved in an automobile collision on the previous day. Be careful what you post on Facebook – this is a lesson that applies equally to all of us.
Facebook postings are generally governed by the Federal Stored Communications Act, which regulates how private information can be produced in non-criminal matters. Generally, the law has been interpreted to mean that Facebook does not have to provide its user’s personal data in response to a civil subpoena. However, there is an increasing trend to allow parties targeted access to even private postings. There is a clear trend in civil cases where judges are allowing access to online information that has been protected as “private” in the past. Again, be careful what you post on Facebook.