Recent guidance from the New York Court of Appeals tells us that private social media accounts may not be as protected as we thought. Protecting information you post online no longer is as simple as double-checking your privacy settings.
The court’s most recent decision to address the use of social media in litigation tells us that social media posts must be produced to an adversary if they’re responsive to a demand that’s reasonably calculated to lead to relevant evidence. As a result, it should become easier to use social media to refute litigation claims.
This decision is a significant change from the old rule that protected a party’s information posted to a private social media page unless the opponent first could establish that the party’s private post contradicted her litigation position. Now, for example, an injured claimant who documents her life on social media may be providing her adversary with voluntary surveillance without the cost of an investigator. Facing an appropriately-tailored discovery demand, it’s likely she’ll need to produce anything she privately posts on her social media platforms. The same is true for companies embroiled in a legal dispute.
As a result, so-called litigation hold letters may be more important than ever. If litigation is contemplated, you’ll want to demand that your adversary’s social media history is preserved, before she’s tempted to delete information that contradicts her legal position. At the same time, it’s important to be aware that once litigation is contemplated, all parties have an obligation to preserve relevant evidence. This includes saving a copy of any information removed or deleted from a social media page.
The attorneys at The Coppola Firm are experienced in all aspects of litigation. If you have questions about your obligations to preserve evidence for an impending claim, or about strategies to ensure a strong litigation position, you’re welcome to reach out to us.
