“What’s on your mind?”
Now that some 1.01 billion people actively answer this question on not only a daily, but sometimes a number of times a day, basis by posting to their Facebook pages, Facebook has become a treasure trove for discovery of information lawyers may use in court. In fact, it has been suggested that a lawyer’s duty of due diligence obligates her to investigate social media for evidence that is relevant to the case. There have been over 320 published decisions mentioning social media in the first half of 2012 alone, and a nationwide case search using the term “Facebook” reveals nearly 1450 decisions.
Clearly, your Facebook “friends” are not the only ones enjoying your posts. It is also the husband you’re divorcing; those neighbors with whom you’re fighting about your property line; the lady that failed to stop her car and rear-ended yours; your co-workers and boss on those days you are “sick”; and most importantly, the judge and jury that will decide who wins your case.
Under Indiana Code 26-2-8-112, electronic documents, as in print outs from a computer, (say, copies of your Facebook wall), are to be treated by the court like any other written record and may be authenticated by circumstantial evidence, direct evidence, or testimony about practice and/or custom. It seems that in the majority of nationwide reported decisions, courts admitted facts gleaned from the Facebook pages of the litigants. So, the next time you choose to share “what’s on your mind,” consider whether that thought is a thought you’d really like to share with local judges and jurors.
If you have a dispute or would like to learn more about handling a case involving electronic discovery and/or social media, please contact any member of the Litigation Practices Team.
