Can Incriminating Facebook Posts Be Used In Court?

In our Facebook and Twitter obsessed world, our courts are grappling with whether they should limit the scope of social media discovery. The restrictions are still being established, but some posts or status updates may not be discoverable in a lawsuit. Yesterday, in Root v. Balfour Beatty Const. LLC– So.3d —, (Fla. Ct. App. Feb. 05, 2014), a Florida court of appeals overturned a trial judge’s order in a case that had required the plaintiff to produce materials from her Facebook account. The Plaintiff was suing on behalf of her son who was injured in an automobile accident near a construction site (the safety of which was at issue in the proceeding). The mother was present at the scene of the accident. At the time of the injury, her son was being supervised by his 17-year-old aunt (the basis of a negligent entrustment affirmative defense).

The defense requested that the plaintiff produce documents including:

Any and all postings, statuses, photos, “likes” or videos related to [Plaintiff’s]’s

i. Relationships with [the injured child] or her other children, both prior to, and following, the accident;
ii. Relationships with other family members, boyfriends, husbands, and/or significant others, both prior to, and following the accident;
iii. Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident; and v. Facebook account postings relating to any lawsuit filed after the accident by [Plaintiff] or others[.]

The plaintiff objected to the request on the grounds that they were overly broad. The court agreed, stating:

[Plaintiff’s] complaint contains claims on behalf of [the injured child] for negligence as to each defendant and Root’s derivative claims for loss of parental consortium. Defendants responded with several affirmative defenses including negligent entrustment of [the injured child] by [Plaintiff], the aunt’s failure to supervise, and the driver’s negligence. As to [the injured child’s] claims for negligence, none of the objected-to discovery pertains to the accident itself. Similarly, none of the objected-to discovery pertains to Defendants’ affirmative defenses. Instead, the discovery relates to [Plaintiff’s] past and present personal relationships with all her children, other family members, and significant others; [Plaintiff’s] past and present mental health, stress complaints, and use of alcohol or other substances; and lawsuits of any nature filed by [Plaintiff] or others after the accident.

The sword can cut both ways. In various cases, I have been able to locate publicly viewable Facebook and other internet posts and photographs of defendants and parties which undermine their credibility as witnesses. For example, in a DWI case last year, I found at least 50 pictures of a teenaged woman drinking and engaging in lascivious poses. The defense attorney initially tried to dismiss the possibility of substantial punitive damages for a first time DWI offense and “only a .09 BAC.” At mediation, I brought color prints of all the photographs and after seeing them, the defense agreed to pay the full policy limits under the driver’s father’s (substantial) insurance policy.

In March, a Texas court of appeals in Beaumont ruled on this evolving issue in the case of in In re Christus Health Southeast Texas. In a a wrongful death and survival action arising from a 2009 cardiac catheterization in which a man died the day after the operation, the plaintiffs were asked to produce “all social network postings pertaining to Arthur’s death.” The plaintiff objected and on appeal, the court found that since the defendants’ requests was not limited in time, it was overbroad and must be overruled. However it suggested that Texas courts would in the future allow more tightly drafted requests for production of these posts.

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