Our use of technology has made it easier to communicate with others, from the use of acronyms (OMG, LOL, TTYL) in text messages to sending live videos as the action happens. We share everything! If we do not post it ourselves, we might find that someone else has tagged or mentioned us when they posted it. However, technology has also made it easier to keep and produce records of these electronic transactions. Using your smartphone, internet, and social media to share your world may be convenient now but may be used against you later.
This information was initially useful in insurance and personal injury cases, such as a claimant who was “immobile” from an alleged back injury posting pictures of his amazing time at a ski trip last week. Now it is used for evidence in countless ways and by too many people for evidence, potentially affecting your employment, relationships with family and friends, and for litigation. That seemingly innocent social media site can be used to track your location (“places”), who you were with, and when you posted. We are so quick to share our lives, until someone else uses our honesty and “friendship” for other motives.
Two easy adages to remember before sending anything in writing are “don’t air your dirty laundry in public” and “if you can’t say anything nice, don’t say anything at all”.
Although the courts were slow to include technology as a viable (and legal) source of information, a wave of amendments to various Florida Rules and Procedures have ensured that every court and law firm in Florida is now on notice that anything you send online or through devices can be accessed. It is the responsibility of the client, the attorney, and any business owned by or that employs the client, to maintain those records. These laws and rules have paved the way for expedited, convenient, and (usually) cheaper production of electronic discovery (E-Discovery) and electronically stored information (ESI).
The courts have found:
- There is a lack of expectation of privacy regarding public postings on social media sites, therefore it is discoverable. When in doubt, check the terms of the social media site. Facebook and MySpace warn users they should have “no expectation of privacy”.
- Private messages and accounts can be accessed if there is indication from other public postings that additional relevant information may be available.
Before you panic and delete anything, you should know that your posts/emails/tweets/texts are not gone forever. It might be a problem if your spouse (or anyone else) has a copy of the information that you deleted and claimed did not exist. For example, Facebook keeps posts for no less than 90 days after deletion. This could also cost you more in the end to get a “true” copy of your post from your internet service provider, email account provider, cell phone company, or social media site. Under no circumstance should an attorney, or other professional, tell you to suppress or destroy social media or electronic evidence.
What does this mean for you?
- Again, if you can’t say, WRITE, TEXT, TWEET, VIDEO, POST, EMAIL, BLOG, or VIDEO anything nice, don’t say WRITE, TEXT, TWEET, VIDEO, POST, EMAIL, BLOG or VIDEO anything at all.
- Using a password or making your account “private” does not mean that your account is inaccessible or immune from discovery. Third persons who had access to your public and private posts can be called later to produce those documents.
- Do NOT pretend to be someone else to find information. The courts have held that you cannot use deception as a tool to gain access to someone’s profile.
- Facebook, MySpace, and Twitter can be subpoenaed to release your postings.
- If you are involved in litigation, do not dispense of old cell phones, tablets, computers, laptops, or any other electronic device. Speak with your attorney first.
Now that you are aware of the implication of technology, how can you use it in your favor?
You can still be your own private detective, but understand your limitations. Again, you cannot use deception to access blocked information. Pretending to be an old high school friend so someone else “friends” you is not allowed. If the account is public, you can copy a post (but do not forget the time/date stamp). This may be unpleasant, but if you cannot get access, a permitted third party who is already associated with the other party can look. Just remember, that the third party now knows that you are investigating and may give that information to someone else.
At the end of the day, think about what you post before you post it. Does EVERYONE need to know how you’re feeling or can you pick up the phone and call your friend? If you’re having a bad day, take a deep breath and vent in the privacy of your car. Privacy on your part cannot be repeated or produced against you later, but anything you send electronically can be.