Social Media: Be Careful What You Post

Group of People with Social Media Concept

By Paul Lauricella – You’ve heard the stories about job applicants who are required to divulge their Facebook passwords to prospective employers. But did you know that your Facebook posts may be fair game if you bring a medical malpractice or personal injury lawsuit?

A number of courts have ordered plaintiffs in personal injury and medical malpractice lawsuits to disclose their Facebook log-in information.

The rationale behind these Orders is that people who bring lawsuits are somehow deemed to have waived their right to privacy with respect to social media. Defense attorneys in those cases convinced the courts that Facebook postings may contain information that contradicts the claimant’s contentions.

These decisions are based upon a fundamentally flawed premise. Courts that have allowed such discovery improperly equate the availability of personal information with discoverability of personal information. If an opponent can rummage through your Facebook account simply because you have filed a lawsuit, that same opponent should presumably be given the right to rummage through every letter you’ve ever written and every photograph you’ve ever taken. Yet, no court has ever allowed such unfettered access to a litigant’s personal information. The fact that Facebook simply aggregates these photos and messages into a central repository should not render the information discoverable.

Fortunately, a number of more reasoned decisions have recently been handed down by more deliberative judges. These Courts have more appropriately held that a defendant seeking access to your Facebook page should first articulate a basis for believing that there is discoverable information to be had.