Skip to Main Content

Social Media and Litigation: An Evolving Combination

Jun 6, 14

Social media is in the hands of nearly every person in the country. According to the Pew Research Internet Project, 73 percent of adults who go online use a social networking website. The highest percentage of social media users by age group is 18-29 (90 percent), followed by those 30-49.

These substantial numbers have given rise to social media communications becoming involved in a wide range of litigation suits. Social media has found its way into cases involving employment, divorce, custody, intellectual property, and personal injury. What are the far-reaching implications of including these types of communications in trial? Do adequate safeguards and legal protections exist to prevent potential abuse of social media discovery?

Social media websites could potentially provide litigators with a wealth of information pertinent to a pending tort claim. The very nature of social media is its social aspect, which encourages users to share personal details about their lives and creates networks of like-minded people based on interests and various personal connections. The exposure of a person’s private thoughts and feelings lose any expectation of privacy when they are shared online and can be accessed freely by anyone with a computer. Where such information is not subject to the protections of privileged communications (as between you and your attorney or an attending physician) federal rules of evidence, and those of many states, permit the discovery of social media communications as evidence.

The discovery of social media communications could then provide litigators with a timeline of what a person was thinking and doing, as well as a potential pinpoint of their location through the use of location-based services.

The use of personal information on social media sites is broadly tempered by the protections in the Fourth Amendment, which bar unreasonable search and seizure. And although the advent of emails, text messages, and social media posts were never envisioned by the Founding Fathers, some specific legislation has been created to enhance protections for these types of communications, such as the Electronic Communications Privacy Act of 1986 (18 U.S.C. §2511) and the Stored Communications Act (18 U.S.C. §2701).

Therefore, from a legal perspective, the discovery of communications in the form of social media must be relevant to a cause of action in a tort claim, and narrowly tailored to the question at hand. As one court put it, allowing unfettered access to an individual’s Facebook page is tantamount to a fishing expedition (Fawcett v. Altieri, 960 N.Y.S.2d 592).

As the world of social media continues to evolve, the legal community must constantly monitor discovery powers as they relate to the use of social media communications in court.

It is great to work with the attorneys at Johnson, Janklow, and Abdallah. They always provide excellent advice and service that is second to none.

Mike Miller | former NBA player

The lawyers at Johnson, Janklow, and Abdallah are consistently ranked as the top business lawyers in the state. Our business can always count on them to aggressively fight for our rights and provide straight-forward advice on complex issues.

Mark McNeary | Primrose Retirement Communities, LLC

Lawyers from Johnson, Janklow, and Abdallah regularly participate in legal education by judging intramural student skills competitions; helping prepare our nationally competitive litigation skills teams; serving or leading the South Dakota State Bar's Law School Committee; and, from time to time , providing guest lecturers. The Law School is grateful for the generous participation of lawyers like those from Johnson, Janklow, and Abdallah.

Tom Geu | former Dean, USD School of Law