Is Your Social Media Content Discoverable?

Written by Galen T. Shimoda and Erika R. C. Sembrano

It is no secret that social media is a big part of today’s culture.  Facebook, Twitter, and Instagram are three (3) of the most popular platforms of social media and if you ask any random person, he or she would likely have heard about one (1) or two (2) of these, if not all three (3).  And there are more social media platforms out there.  It is also no secret that people usually turn to social media in order to talk about their day, like where they are, who they’re with, and what they’re doing.

California is aware of social media’s widespread impact in our communities.  The California legislature has even prohibited employers from requiring or requesting employees to disclose a username or password for the purpose of accessing their personal social media, access personal social media in the presence of the employer, or divulge any personal social media (unless relevant to an investigation or related proceeding about an employee’s misconduct or violation of laws). 

Because of its commonality, social media can be a helpful source of information for a lawsuit.  The most common example relates to a personal injury lawsuit.  Let’s say Polly and Dan get into a car accident, and Polly claims that the accident is all Dan’s fault and now she cannot move her legs.  However, based on her social media post the week after the accident, Polly posts a video of her jumping on a trampoline and doing somersaults.  Can Dan use this video as evidence against Polly?  In California, the trend seems to be “yes.”

When it comes to lawsuits and discovery (which is the legal process for obtaining information from another party or non-party), courts have found that social media content is discoverable so long as the content sought is relevant or will lead to relevant evidence.  However, in general, it is possible that people may abuse the discovery process and engage in what is called “fishing expeditions,” which basically are attempts to find helpful information against another party by asking for too much information without having a sufficient reason as to why the information is being asked.  Courts do not like fishing expeditions; indeed, this is why the standard in California state courts regarding “discovery” is that a party is allowed to seek information that is relevant to the lawsuit or that is reasonably calculated to lead to the discovery of admissible evidence in the lawsuit. 

The danger with social media is that it contains a vast amount of information.  Courts want to prevent parties (and their attorneys) from trying to access all of the information without any sufficient reason.  For example, Polly’s video, which is relevant to her claims against Dan, is on her social media page, but there are also a lot of unrelated items on her social media page, such as who she had coffee with the week before the car accident.  In this generalized example, it would be difficult for Dan to argue that he needed access to all of Polly’s social media content, including who she had coffee with week before the accident, for the lawsuit.  As part of the discovery process, such a request by Dan probably would not hold in court because it is too broad, or, in other words, it asks for non-relevant information or information that is not reasonably calculated to lead to the discovery of admissible evidence.

Another related argument that arises regarding social media is that it can and should be considered private, especially if someone’s account is “private” and only a certain number of people can see the contents.  However, at least one (1) California state court has said that even though an account is “private” and limited to viewing by a few number of people, this does not mean that what is posted is completely private.  The plaintiff claimed that the defendant, who was not one of the plaintiff’s social media friends, invaded her privacy because he took one of her posts and gave it to the newspaper to be published.  The court stated that because the plaintiff posted something on her social media page for her limited audience to see, the plaintiff had no expectation of privacy regarding the post and thus did not have a valid claim for invasion of privacy. 

Tying this back to the Polly v. Dan example, if Polly argued that her social media account was private so that only a few people, not including Dan, had access to it, the court would probably still allow Dan to obtain from Polly the relevant video.

This all goes to say that social media content can be discoverable, so long as what is sought abides by the applicable discovery standard.  And even if an account is private, limited only to certain number of people, it seems that there is no expectation of privacy in such social media accounts.  Ultimately, social media content can be used to someone’s advantage, but social media can be other people’s demise, especially when a lawsuit is involved.

If you think you may have potential claims relating to your employment or believe you have claims appropriate for a class action, contact our office to have your claims evaluated.

The Shimoda Law Corp. legal articles should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents of these articles are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.

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