Blocked: The Limits of Social Media as Evidence

by John A. Myers, Associate Staff

 

In the digital age, social media has become a dominant form of communication. Because of the increased usage of social media in recent years, user contributions to social media have increasingly been used as evidence in litigation. The main legal question that has arisen from social media as evidence is: How much access of their social media account does a party have to give to an opposing party that is requesting the evidence? If one party wants to introduce a single social media post as evidence against the opposing party, should that party have access to the other party’s entire social media account, or just that single post? Courts have recently started to adjudicate on this issue and the results have been mixed, with some courts arguing that access to opposing parties social media account is an unreasonable intrusion on privacy.

 

Because of the public nature of social media, posts made on social media sites have increasingly contributed to litigation. For example, the American Academy of Matrimonial Lawyers published a survey indicating 81% of divorce proceedings involve social media evidence, with 66% coming from Facebook alone.[1] It’s easy to understand how a Facebook post blasting a spouse or an Instragram picture showing a spouse with a mistress could be used as evidence during a subsequent divorce proceeding. The problem becomes when a court has to decide how much access the requesting party should be given to the opposing party’s social media account. While it may be easier to just allow the requesting party to have temporary access to the opposing party’s account for the purposes of securing the evidence requested, that also opens up the possibility that that party could find more evidence against their opposing party that wasn’t specified in a discovery request.[2]

 

Because of the potential encroachment on the privacy of the opposing party, courts have been hesitant to allow complete access to the requesting party and have attempted to establish a two-part test regarding access to social media evidence.[3] Firstly, the social media evidence must have some relevance to the facts that it is seeking to support.[4] This first part is well ingrained in the Federal Rules of Evidence and similar state rules for introduction of evidence from any source.[5] Secondly, the court must determine whether blanket access to the social media account is allowed or if the requesting party need only be given the social media post in question. Recent court cases have split on this issue. Some courts said that blanket access to the other party’s social media account is per se unreasonable.[6] Other courts have granted blanket access, but with restrictions. In Largent v. Reed, the plaintiff was ordered to turn over her Facebook login information to opposing counsel, who would then have 21 days to inspect a limited section of the account.[7] After that period, the plaintiff could change her password to prevent any further access to her account by opposing counsel.

 

What is most interesting about social media as evidence and its development is the affect on an individual’s privacy. Since the advent of Facebook, Twitter, and other social media platforms, the main legal question surrounding these platforms has been: How much privacy should their users expect from comments made on those sites? While the answer has almost always been “None”, the first cases to address the introduction of social media as evidence seem to indicate that there is at least some material on social media that is off limits to opposing parties. A Pennsylvania court recently concluded that a court order that would grant the opposing party access to information on a Facebook account that was only intended for “Friends” (of which the opposing party was not one), would be intrusive and potentially embarrassing for the acquiescing party.[8] Other state and federal cases have concluded that searches of social media accounts are an intrusive way of gathering evidence and less speculative and “annoying” methods should be used when possible.[9]

 

The use of social media as evidence is still in its infancy and its introduction or exclusion will likely develop for decades to come. It will be interesting to see the progress of social media evidence and whether future courts continue to hold certain aspects of social media to be off limits for evidentiary purposes.

 

 

[1] Press Release, American Academy of Matrimonial Lawyers, Big Surge in Social Networking Evidence Says Survey of Nation’s Top Divorce Lawyers (Feb. 10, 2010) (on file with author).

 

[2] Fed. R. Civ. P. 26(A)(ii)

 

[3] Margaret DiBianca, Discovery and Preservation of Social Media Evidence, Business Law Today (Jan. 2014), http://www.americanbar.org/publications/blt/2014/01/02_dibianca.html.

 

[4] Fed. R. Evid. Rule 401(a).

 

[5] Id.; Va. R. Evid. 2:401.

 

[6] Trail v. Lesko, No. GD-10-017249, LEXIS 194, at *30-31 (Pa. D. & C. Jul. 3, 2012).

 

[7] Largent v. Reed, 2011 WL 5632688, No. 2009-1823 (Pa. D. & C. Nov. 8, 2011).

 

[8] See Lesko, LEXIS 194, at *28-30.

[9] Id.; Chauvin v. State Farm Mut. Auto. Ins. Co., No. 10-11735, 2011 U.S. Dist. LEXIS 121600, at *1-3 (S.D. Mich. Oct. 20, 2011). 

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