DO NOT DELETE: You May Have A Duty To Preserve Your Social Media Posts

Posted by Christopher Germaine | May 27, 2021 | 0 Comments

Social media has brought about the ability to instantly share information with friends, family and strangers, 24 hours a day, 7 days a week.  Sometimes, but not always, the posts on your social media account may be discoverable in a lawsuit. The duty to preserve evidence applies to all lawsuits, including those for trip and falls, medical malpractice, motor vehicle accidents, dog bites, etc.  Before clicking the delete button on your social media account, make sure you have consulted with an attorney to make sure you are not harming your case or putting yourself in legal jeopardy. 

Discovery of Social Media

What Makes Social Media Discoverable?

Pursuant to CPLR § 3101, a party may obtain full disclosure of any material necessary to the action's prosecution or defense.  New York State courts have construed this statute broadly to include any non-privileged matter including electronically stored information (ESI), that will lead to the discovery of evidence that is 1) admissible at trial; and 2) related to the issues in the litigation. 

When Do I Need to Preserve Social Media?

When you possess tangible evidence, you have a responsibility to preserve that evidence for inspection, if there is a likelihood of litigation in which the evidence would be relevant.  Failure to preserve the evidence can result in spoliation sanctions or an adverse inference at trial.  Usually, the party bringing a lawsuit will send the defendant (person being sued) a letter telling the defendant that they intend to sue.  This letter triggers the defendant's duty to preserve evidence, including social media.  However, if right after an accident, one party to the accident says to the other "I'm gonna sue you.  You'll be hearing from my lawyer."  It could be argued that the duty for those two parties to preserve evidence began at that very moment. 

How Does The Other Side Obtain Social Media?

To obtain social media, like any document or information in the discovery phase of litigation, the other side must request or demand the information.  This is formally done through written demands, which are served on the party who is believed to have responsive documentation/information.  If proceeding pro se (without an attorney) the demand must be served on the party personally, if represented by an attorney, on their office.  The court could also order, on its own, that one party turnover social media information to the other. 

I Think I Want To Sue Or Am Going To Be Sued

If you believe that you are going to litigate, either by bringing a lawsuit against the party(ies) that injured you or are going to be sued for injuries to another person, the duty to preserve evidence applies.  To the extent that you have social media accounts, steps should be taken to ensure that there are no automatic processes that will delete posts, comments, photos and other information posted to your accounts; making it possible to review those accounts for information that may be discoverable.  A failure to preserve the information may be considered spoliation. 

Spoliation

Spoliation is the intentional or negligent destruction of evidence.  However, in order for a party to be subject to a spoliation sanction, that party must have a responsibility to preserve the evidence in question. The responsibility may subsequently shift to the party's attorney if the attorney takes custody of the evidence.  

The "Key Evidence" Rule

For there to be a sanction imposed for spoliation, the evidence that is lost, destroyed, or altered must be “key evidence."  If the evidence that is lost, destroyed, or altered is not relevant or not necessary to establish a claim or defense,  spoliation will not come into play, although a discovery sanction for the failure to exchange matter pursuant to a court order may warrant a penalty pursuant to CPLR § 3126.  The fact that some, but not all evidence was not preserved does not equate to spoliation, and it is necessary to evaluate the importance of the lost evidence relative to the claims

Consequences Of Not Preserving Social Media/Spoliation

A failure to preserve your social media can result in severe penalties imposed by the court, resulting in an order with or without sanctions.  Where the party seeking the sanction can demonstrate that the opposing party 1) Intentionally or negligently disposed of crucial items of evidence before the adversary had an opportunity to inspect them; and 2) This conduct deprived the party seeking the sanction of the means for proving his claim, the court may award sanctions.  Where a party fails to comply with discovery or refuses to obey an order for disclosure, the court may "make such orders with regard to the failure or refusal as are just."  CPLR § 3126.  Sanctions can include orders:

  • Resolving against the noncompliant party the issues related to the relevant disclosure
  • Barring the noncompliant party from producing evidence to support or oppose the applicable claims
  • Striking the noncompliant party's pleadings
  • Dismissing the noncompliant party's claims –or–
  • Entering default judgment against the noncompliant party

Notably, withholding or destroying discoverable information can result in the striking of your Complaint, meaning the end of your case.  This could also result in the lesser penalty of an adverse inference instruction, which was developed on the premise that a party's intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to the party responsible for loss or destruction of the evidence.  This instruction will be read to the jury can can severely harm your chances of success at trial.  

Just Because Your Social Media May Be Discoverable, Does Not Necessarily Make It Admissible At Trial

Sometimes your social media may be determined discoverable by the court because it is believed that there will be admissible information contained within it.  However, this is not always the case.  Sometimes the other side will obtain your social media and discover there is nothing contained within the records that is relevant to the case at issue.  Thus, there is a question of whether the social media information is even admissible at trial.  This possibility shows the importance of preserving social media because, if non-admissible information was deleted, you have proof for a judge to keep it out.  If the same information was deleted, there is always a possibility that information could be deemed relevant, resulting in an adverse inference or sanction, since the court does not have the evidence to review. 

Why Hiring The Right Attorney Is Necessary

In the 21st century, we have all types of new discovery obligations, with social media information retention being the tip of the iceberg.  With the advent of the computer and electronic records, discovery obligations extend far and wide to your cell phone, tablet, computer, possibly even your smart devices that use Alexa or Siri.  When searching for an attorney, be sure that they understand electronic discovery, including the discoverability of social media, or risk potentially fatal outcomes to your case. The world of electronic discovery, also known as e-discovery, is vast, and this article only contains a fraction of the law that surrounds discoverability of social media.  If you have questions about the topics raised in this article, or questions about the broader world of e-discovery, please give me a call at (631) 938-6543.  

About the Author

Christopher Germaine

I grew up in Rocky Point, New York, where I lived until I left for college, attending St. John's University and St. John's University School of Law, in Jamaica, Queens.  During law school, I was given the opportunity to take the New York State Bar Exam earlier than the rest of my graduating class...

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