Could your Facebook account lose your case? Absolutely. Both I and other attorneys at Greenberg & LaPeyronnie have personally won several cases by strategically using the other party's Facebook account information against him or her.
Almost everyone is on Facebook these days. Most people know to check their settings and keep their profiles private, especially if they are a party to a lawsuit. And never "friend" opposing parties or opposing counsel. (One would think that would be obvious, but....) But should you be on Facebook at all, if you are involved in litigation? Attorneys are routinely using Facebook pictures and posts as evidence in trials. Could this woman be you?
Examples of Real Cases
Although it can happen in any case, domestic lawsuits and personal injury cases are the most likely candidates for Facebook abuse. In a domestic case involving false allegations of abuse, I used the alleged victim’s Facebook post stating that she would do or say “anything” to get back at her ex-boyfriend, our client. Her claim was dismissed. I am aware of personal injury cases which have been “zero-ed” when a supposedly severely injured party was tagged in Facebook pictures carrying his child on his shoulders or enjoying beers with friends and family. Recently, a Florida court rescinded a settlement of $80,000.00 after the plaintiff's daughter violated a confidentiality clause by bragging about the settlement on Facebook. If you are a plaintiff in a personal injury suit or you have an ongoing domestic case, it is probably in your best interest to shut down your Facebook profile altogether.
What Can Be Produced
The good news for you: Facebook is notorious for failing to respond to subpoenas (unless, of course, the requesting party is in California or domesticates the subpoena in California, is in law enforcement, or is the federal government). But that won't stop the court from ordering you to download your account information in full - including your password, pictures, and private messages - and turn it over to the other side. And if you don't comply with that order? Or get caught deleting portions of that account? Well, things might look pretty grim for your case.
Deleting or Deactivating Your Account
What if you to get rid of your account altogether? Keep in mind that permanently deleting a Facebook account may count as destruction or spoliation of evidence. (Although Facebook may internally retain some or all of your information; given their screwy privacy policies, no one really knows.) And deactivating a Facebook account doesn't eliminate your account; it just prohibits access to it, until you log back in.
What to Do
But hope is not lost. If you don't have an active Facebook account, the other side is less likely to want to obtain your records. And they must have some reason to do so - some courts have ruled that a "fishing expedition" to see what they might find is not enough. If you've been smart, haven't posted anything about your lawsuit, haven't lied to opposing counsel, and your privacy settings are sky-high, there will be little reason for opposing counsel to request your information, and little reason for the judge to order you to produce it.
Long Story Short
Keep your profile as private as possible, but assume everything on Facebook is totally public; deactivate (not delete) your account if you are a party to a lawsuit; don't lie or exaggerate; and don't post anything - ever - about the subject of your case.
Greenberg & LaPeyronnie is not your lawyer, and therefore the information contained in this blog post is simply informational, not legal advice. However, if you have any questions or are seeking legal advice, please call us at 504-366-8118 to set up a consultation today.