We all know one.  One person who posts every mundane event in his or her life in excruciating detail on Facebook or Instagram.  Don’t we all need to see 32 pictures of someone washing his dog?  Or 23 pictures and explanations of baking some cookies?  Perhaps they live tweet their root canal procedure on Twitter?  Maybe you know this person.   Maybe this person is your client.  Maybe opposing counsel is looking at your client’s social media pages right now.

Social media has given us an unprecedented ability to share events, worthy and not worthy, with the world.  This sharing behavior can lead to some very undesirable outcomes for the sharer who is involved in a legal dispute.    As a result, it would be wise in any litigation matter to check the social media account of both the claimant and the defendant.  If useful info is there, have it collected!  It would also be useful to revisit these accounts as the matter progresses,  and collect any new information posted that may prove useful.

Perhaps a former employee who signed a non-disparagement agreement is excoriating his former employer on social media?  What if the former employee signed a non-compete agreement but posts pictures of herself at a corporate social event of a competitor?  What about the medical malpractice or workman’s compensation victim who cannot perform his job due to injuries but post pictures of himself water-skiing with the family at the lake?

In the past, very upset people would host a website and call it “www.[Insert Company Name]-Stinks.com.  Now, thanks to social media, it’s much easier to simply start a Facebook group dedicated to demonizing an organization.  With the perceived anonymity of the internet, people are emboldened to post information or critiques that they might never send in a signed letter or email.

How is any of this useful to counsel?  Dominique Sharpton’s $5 million lawsuit against the City of New York is probably going to go away due to her postings on social media.  She claimed significant impairment due to tripping on a crooked piece of the roadway.  Unfortunately for her case, she later went on vacation and was unable to suppress the urge to post images on Instagram of her climbing a mountain and also walking in high heels.  I am sure her attorneys were not too pleased.

If you aren’t looking at your own client’s social media pages, as well as those of your adversary, you may be missing the proverbial smoking gun that either helps or hurts tremendously.  Collecting this data for use in your matter is simple and inexpensive.  Sites like Facebook, Twitter, Instagram and LinkedIn are all great places to see what people are posting before and during litigation.  If you aren’t looking, what are you missing?


ABOUT Peak Forensics: Peak Forensics is a full service Computer Forensics, Electronic Discovery and Consulting firm in Phoenix, Arizona.  Peak Forensics provides experienced, professional computer forensics services, client centric electronic discovery and seasoned testimonial and trial consulting services.  Peak’s CEO and founder, Jefford Englander, has been actively participating in computer forensics and ESI investigations for 15 years and has a background in local and federal law enforcement and the civil litigation realm.  From ESI collection to forensic analysis, hosted review, reporting and expert testimony, Peak can lead you to focused information.

Forensics and E-Discovery