Persons who have been injured and intend to, or have already initiated a lawsuit show be wary of what they post on social media site such as Facebook & Twitter. Setting your facebook account to ‘private’ isn’t enough to ensure that what is posted on Facebook will actually remain private;  As the court stated in McMillan, Facebook posts are not truly private and judges may rules  that information is relevant to defenses’ case in discovery.

In recent years, a number of landmark cases have resulted in social media and online content attributed to the plaintiff being allowed to be used as evidence.  Defense attorneys are more frequently learning how to use social media as a litigation tool, by using civil subpoenas to request information about the plaintiff directly from social networks.

While the majority of cases, the courts usually grant requests for court orders to access social media profiles, it’s not always the case; in Arcq v. Fields, the court denied defense counsel’s requests to access a plaintiff’s social networking sites, suggesting that the defendant needs to show something more than “The plaintiff has a Facebook page and there might be stuff on it.”

Some social networks, including Facebook, have resisted these requests as an effort to protect users privacy, citing the “Stored Communications Act”;

“Even when a subpoena is provided, the company still may decline to give information. For example, last year Facebook successfully fought the state of Virginia’s demands to hand over the contents of a user’s accounts to settle a dispute over workers’ compensation.”

“Stored Communications Act”

Social media user’s account information is protected under the Stored Communications Act (SCA), which requires account holders’ permission to distribute their personal information to third parties. A plaintiff cannot use the SCA to avoid a court order to disclose personal information.

Despite protection under the SCA, courtrooms are admitting evidence obtained from some social media accounts without the user’s consent.  Defense counsel are simply using subpoenas, or requesting for court orders to obtain user account information.

[1] http://www.switched.com/2010/09/30/ny-judge-says-facebook-posts-can-be-used-as-court-evidence-ev/
[2] http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech563.pdf
[3] No. 06-CV-01958-WYD-MJW, 2009 WL 1067018, at 1 (D. Colo. Apr. 21, 2009)