Social media posts often play an important part in litigation. Posts can provide more insight into the truth than a litigant’s “official” story in court. A 2009 case stands out: a woman was accused of illegally racing on a freeway and causing the other driver’s death. She claimed that she wasn’t racing but merely sped up to get out of the driver’s way. However, just the day before, she posted to MySpace: “If you find me on the freeway and you can keep up I have a really bad habit of racing random people.” As I blogged then, it’s becoming harder “to maintain multiple persona–in this case, the in-court persona of being a safe and courteous driver while simultaneously maintaining an alternative persona as a ‘secret’ street racer.”

You may be surprised that virtually everything we post to social media may be discoverable in litigation. Information “relevant” to the litigation generally should be available to litigation opponents. In personal injury cases, when plaintiffs allege they experienced “pain and suffering” or “emotional distress,” every comment and photo on Facebook might disprove these alleged harms, making them potentially relevant. And as I previously discussed, social media sites are making it easier to download a full record of users’ content.

Nevertheless, litigants can’t simply demand a complete download of their opponent’s Facebook posts. Their discovery requests must be calculated to lead to relevant evidence, so “fishing expeditions”–where relevant evidence might be incidentally caught in an overbroad discovery request driftnet–are not permitted. The privacy rights of the litigant, and third parties who communicate with the litigant, also need to be considered.

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