How Social Media is Being Used as Evidence in Litigation

By Jacqueline Vinaccia, Partner?

There’s no question that social media has changed all our lives in a multitude of ways. From relationships to marketing, things will never go back to pre-Facebook and Tik Tok days. One area in which social media has had a big impact is the legal field, specifically litigation. Specifically, social media posts are increasingly finding their way into legal proceedings as valuable pieces of evidence. From criminal cases to civil disputes, these digital snapshots are playing a pivotal role in shaping the course of justice. Let’s look at some examples of how social media posts are being used as evidence in various aspects of the law.

Criminal Investigations — Law enforcement agencies are leveraging social media platforms to aid in criminal investigations. Posts, photos and messages that can be crucial in establishing timelines and connections between individuals. And just because an account may be considered private, that does not mean the content cannot be discovered and used in litigation.

Personal Injury and Civil Cases — In civil litigation, social media posts are increasingly being used to assess the credibility of claims. For example, insurance companies and legal teams can look at the online presence of individuals involved in personal injury cases. A plaintiff claiming severe physical injuries may find their case weakened if their social media profile shows photos of the individual that is inconsistent with their claims.

Family Law — Social media has almost impacted family law and child custody cases. Attorneys often look for evidence on social media related to spousal misconduct, hidden assets and financial standing of an individual. Child custody battles may also involve presenting social media posts as evidence of a parent’s lifestyle or behavior. Those posts can impact the court’s decision on what is in the best interest of the child.

Employment Disputes — Employers are increasingly turning to social media to monitor the activities of their employees, or reviewing their accounts before making hiring decisions. In some cases, such posts have been used as evidence in legal disputes related to wrongful termination or breach of contract.

Remember that the internet is essentially forever. Even if you delete the post, the content is not gone and can be obtained legally. Even with apps like Snapchat, and Instagram’s latest feature of disappearing messages, content and posts can be retrieved through the proper channels. Nothing is gone forever! Also keep in mind that even if your accounts are set to private, that doesn’t mean posts cannot be used as evidence and will be saved from litigation. While private settings do help to conceal posts and comments from the general public, they are not a legal safeguard.?

As social media continues to shape the way we communicate, its role in litigation is expanding. Courts and legal professionals must carefully consider the implications of digital evidence in the courtroom. If you are facing litigation and questioning whether social media has a place in your case, it’s best to consult with an experienced litigation attorney who can advise you on how to proceed. Do not make decisions, including erasing Facebook posts or deleting messages, without first consulting an expert.?

Jacqueline Vinaccia is a San Diego trial attorney, litigator, and national fee auditor expert, and a partner at Vanst Law LLP. Her practice focuses on business and real estate litigation, construction disputes, and municipal litigation. Her attorney fee analyses have been cited by the U.S. District Court for Northern California and Western Washington, several California Superior Courts, as well as various other state courts and arbitrators throughout the United States. She has published and presented on the topic of attorney fee invoicing and is considered one of the nation’s top fee experts by the National Association of Legal Fee Association.