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Facebook Private Posts, Pix Now In the Litigation Mix as Evidence

Source: WSJ/Asby Jones and Reuters

Posted on 28 Jan 2011

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Those filing lawsuits should beware of what they're putting on Facebook and other social networking sites, including photos that may undermine their case. For example, if a litigant alleges injury due to a slip and fall and then posts pictures frolicking on the beach in Hawaii, that could spell trouble.

In  a recent article in Reuters, "the latest litigation tactic in the online age . . . lawyers are trying to mine the private zones of Facebook and other social-media sites for photos, comments, status updates and other tidbits that might contradict what their opponents are saying in court.”

But would a court really allow private posts and pictures as evidence? The article says that: “Increasingly, judges in civil cases are granting access to online caches that had formerly been considered off-limits."

Look at a personal-injury case in Erie, Pennsylvania described in the Reuters article:

A personal-injury case in Erie, Pennsylvania, shows how online musings intended as private can now make their way into litigation. In 2007, a racecar driver named Bill McMillen sued the owners of a local track, Hummingbird Speedway, claiming that he was seriously injured and lost “the enjoyment of life” as a result of an accident on the track. The lawyer for the speedway, Gary Bax, said he checked out McMillen on Facebook and found comments and photos suggesting that after the accident, McMillen went on a fishing trip to Florida and attended the Dayton 500.

Bax filed a motion to compel McMillen to turn over his Facebook and MySpace user names and passwords, so Bax could dig deeper. In September, Jefferson County Court of Common Pleas Judge John Henry Foradora granted the motion, noting that Facebook and News Corp’s MySpace are specifically designed for sharing personal information. “While it is conceivable that a person could use them as forums to divulge and seek advice on personal and private matters,” Judge Foradora wrote, “it would be unrealistic to expect that such disclosures would be considered confidential.” A trial has not yet been scheduled.