Mark Roman | February 7, 2014 | Articles
Social media has exploded in popularity in the last decade. Many people enjoy using sites like Facebook and Twitter to keep in touch with friends and family. At the same time, use of social media has raised some serious concerns about privacy. Media reports tell us that people venting about their jobs on social media have been fired for doing so. Others worry that potential employers will view their social media posts before making a decision about whether to hire them.
Balancing privacy concerns against free access to information has created dilemmas for courts as well. Parties to lawsuits now routinely seek information about social media posts from their opponents, hoping to find damaging statements or photos which can be used in court.
Because the issue is relatively new, courts around the country have not reached a consensus about what social media information is fair game. Fortunately, the Florida appeals court for the Tampa Bay area recently took a step to provide some guidance on this subject. It limited the type of information an opposing party could discover from a plaintiff in a personal injury case.
The case, Root v. Balfour Beatty Construction, began when a small child was injured after being struck by a vehicle on a construction site. His mother sued the construction company and alleged it had made the work site unsafe for pedestrians.
The construction company then asked to see the mother’s Facebook postings from her personal account. The request was broad, and included any posts relating to her relationship with her injured son and other children, relationships with husbands, boyfriends, and family members, and any posts concerning mental health and alcohol or drug use. The mother refused to provide that information, and the dispute went to the Second District Court of Appeal for a decision.
The appeals court found that social media evidence is discoverable generally. However, it also said there must be limits. Just as with other information parties are required to disclose, it must be relevant, or at least have a reasonable hope of leading to something relevant.
Using those guideposts, the court found the information being requested by the defense was too remote from the real issues. The court said the focus should be on the impact the son’s injury had on his mother. Instead, the court wrote, the defense was asking for postings about the mother’s relationship with her other children, family members, and boyfriends, along with other extraneous information about mental health, substance abuse, and other lawsuits. It concluded that courts should guard against this “type of carte blanche discovery.”
It is good that our appeals court has provided some much-needed guidance about this developing area of law. Having said that, we continue to believe that people – even those not involved in lawsuits – should be very careful about what they post on social media. The law on this issue is still at an early stage, and there may be changes on the way. And of course, you don’t have to be part of a lawsuit to have social media get you in trouble with friends, acquaintances, or potential employers.
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