Question: My subcontracting company faces a lawsuit claiming a job was not performed to specifications. Unfortunately there are pictures on Facebook showing some of my employees goofing around on the job. I don’t think their pranks are relevant but it doesn’t look good. Can I prevent stupid social media posts from going in as evidence in the case?
Answer: Smartphones with cameras are everywhere. So, this presents a growing issue. Can unflattering photos be used as evidence? Courts facing this question review the facts on a case-by-case basis with varying results. For example:
A New York court found that even if posts are made under privacy settings, terms of service of sites like Facebook and MySpace warn that even under privacy settings, all material is posted at a person’s own risk. The court held that there’s no legitimate expectation of privacy and ordered complete disclosure of Facebook posts.
But a Florida court ruled the other way. That lawsuit was brought by parents of a child hit by a construction vehicle outside a job site. The mother was asked to produce any and all of her own Facebook postings, “statuses, photos, ‘likes’ or videos.” But on February 5, 2014 the Florida District Court of Appeal quashed the request, calling it a fishing expedition having nothing to do with the accident.
Standard Court Rules Challenged by Social Media
Rules governing civil lawsuits, that is, non-criminal matters in the courts, include very broad parameters for discovery. What that means is that the rules allow disclosure of anything reasonably calculated to lead to evidence that may be admissible. This wide open standard allows attorney requests for materials far beyond that which might be considered “relevant”.
Courts balance whether sought after items are reasonably calculated to lead to the discovery of admissible evidence against objections claiming they are overbroad, unduly burdensome and designed only to harass. These are the standards against which your employee’s prank pics will be measured.
Will The Court Allow Facebook and other Social Media Posts?
My guess, and it is only that, is that pranking and acting foolish while on a serious construction job may well be found to be calculated to lead to evidence which may be admissible at trial. But, just because they are discoverable, that does not necessarily mean they will be admitted as actual evidence at trial.
The New York case is Romano v. Steelcase, decided by the NY Supreme Court for Suffolk County on September 21, 2010. The Florida case is Root v. Balfour Beatty Construction LLC, et. al., decided by the FL District Court of Appeal, Second District on February 4, 2014.
Attorney Andrew D. Myers is a personal injury and bankruptcy attorney practicing in Massachusetts and New Hampshire
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