by Amy B. Welch
Social media is ubiquitous and constantly evolving. My Space, Live Journal and Napster have been replaced by Facebook, Instagram and Twitter. It is important to be aware of your digital footprint and what information can be subjected to discovery in Massachusetts.
Discovery is governed by Rule 26 of the Massachusetts Rules of Civil Procedure. Any information that is publicly available is discoverable, while private information will be subject to discovery if it is reasonably calculated to contain relevant information. Social media, however, with its friends and followers, blurs the lines between public and private information.
Although social media is a new construct, traditional discovery rules still apply. The party seeking “private” information must be able to show that the request is reasonably calculated to lead to the discovery of admissible evidence. Businesses and individuals should be aware that deleting social media posts could expose them to monetary damages for destroying evidence.
Although the means of communication has evolved, common sense still applies. Just as you would not enter someone’s home without permission, you should not access anyone’s account without express permission. Indeed, unauthorized access of another person’s social media account could expose you to liability under Federal law.
The following is a brief explanation of the four most popular social media applications.
Facebook allows you to share thoughts, photos and videos with friends. Users can control whether their profile and postings are public posts and can be viewed by anyone, regardless of whether or not they have a Facebook account, or private and can only be viewed by the account holder’s approved friends. Facebook users can post on their own profile page, comment on friends’ posts or public posts, or post a message on a friend’s page. Facebook Messenger lets users send private messages, similar to an email, to a friend or another Facebook user, regardless of whether they are friends.
Instagram allows users to share pictures and videos online. Like Facebook, account holders have a profile and a newsfeed. Users have the ability to comment, follow or like anyone, which includes friends, families and celebrities. An increasing trend is the use of a “Finsta” or “Fake Instagram” account. The Finsta account will have a different user name and is used to post pictures, videos and comments to a smaller, more selective audience. These accounts may also be subject to discovery.
Twitter is a social networking site that allows users to post status updates, known as Tweets, of 280 characters or less. Like Facebook and Instagram, users can choose whether their accounts are public or private, meaning that the tweets can only be viewed by approved friends or followers.
Snapchat is a multimedia messaging application. Users can send pictures, videos and texts to specific users and it will disappear ten seconds after viewing. Snapchat Stories allows users to string together pictures and videos that are viewable for twenty-four hours by all Snapchat friends. Additionally, unless it is manually turned off after each update, Snapchat will show the users’ location at the time the message was sent. Given the temporal nature of Snapchat posts, take a screen shot of any messages you think will be relevant to your legal issues.
While social media has transformed the ways in which we communicate and share news, it has not changed the basic tenets of discovery. Be aware that a public post is akin to an ad in a newspaper in that it will be available to all. Likewise, a private post, like a letter or an email, will be subject to discovery if it is reasonably calculated to lead to the discovery of admissible evidence. The best practice is to understand each social media platform’s privacy settings before posting and to understand that nothing on the internet is truly private.