In the course of litigation, the parties enter a phase called "discovery".
During discovery, each side requests the other to produce documents and
answer questions that may lead to admissible evidence at trial. Naturally,
the other side will try to gain any and all information it can about you.
The other side will also attempt to obtain information about you that
might give it an advantage should the case proceed to trial. This discovery
process occurs in every case, whether criminal or civil.
Social media outlets such as Facebook, Twitter, Instagram, LinkedIn, YouTube,
Google+, etc., have grown exponentially. A recent New York Times article
found that 52 percent of Internet users regularly log into at least two
social networks, see
Americans Use More Online Social Networks for more details. Although these social media outlets provide individuals
with convenient and exciting ways of staying connected with friends, describing
your current activities and hobbies, and posting pictures of yourself
and your family enjoying life, the information on these outlets will likely
be discoverable by the other side. This means that if the other side requests
that you produce information which you have posted in some form of social
media, then we will likely have to provide copies to comply with the rules
In the case of personal injury cases, this could be a good thing. The opposition
will be able to see the client's quality of life prior to their injuries
and learn that their lives have been changed by their injuries. This may
help give merit to your case by presenting a "before and after"
picture of your life.
Unfortunately, not all the information on social media outlets is helpful
to our clients' cases. For example, Facebook pictures of clients engaging
in physical activities after their injury that were not recommended by
their doctor, or tweets describing reckless, daredevil or unlawful behavior
can, and most likely will be used to undermine the validity of your case.
Similarly, posting opinions about why you should win your case or making
derogatory comments about a defendant or a judge also has the potential
to be used as evidence against you and to have a detrimental effect on
The same is true for family law or criminal law cases as well. Pictures
of new significant others while a divorce is pending is not against the
law, but will almost certainly make the negotiation process
much more difficult. Further, if you are involved in a custody battle, it may not be wise
to have pictures of your children engaged in activities with your new
significant other. The opposition will almost certainly claim that you
are using very poor judgment in exposing the children to a new person,
so soon after the breakup of the marriage. This could affect the way the
court views your judgment, and ultimately affect your custody.
Similarly, and perhaps less thought of, are pictures or tweets having to
do with money. If you are claiming to the court that you cannot afford
to pay your spouse's car insurance during the pendency of the divorce
proceedings, then it may not be a good idea to have 20 pictures of you
and your friends on the 5-day cruise vacation you just took. A smiling
and tanned you with an island drink in one hand and the fish you just
caught on the chartered fishing excursion in the other, will almost certainly
make it in front of the court if you claim you don't have the funds
to pay this or that expense.
The same certainly applies in criminal matters. Pictures of unlawful or
reckless behavior will not be helpful to your case. If you are facing
a DUI charge, and you are claiming to the court that you have stopped
all drinking and are in alcohol classes or rehabilitation, pictures of
you drinking at a Pacer's game or at the local pub for St. Patty's
day will likely make their way into the judge's hands. Beating a charge
of possessing a handgun without a permit might become more difficult if
you are posing at the local firing range with a Glock 9mm in one hand
and a Smith & Wesson in the other.
Before posting anything, STOP – THINK – and use COMMON SENSE
about what you are posting before you make public statements on social
media outlets. Keep your postings to a minimum, and keep them as generic
Also, if you do have potentially adverse information on your social media
accounts, DO NOT DELETE it during the course of litigation. Not only will
the opposing side still have access to it through computer forensic specialists,
but doing so could have legal ramifications, such as spoliation of evidence.
Instead, contact our staff and advise us of any potential problems or concerns.
Call Bowen & Associates at 317-565-2221 for a free consultation and
to be advised of other precautionary measures to take during litigation.
Our staff is well versed in family law, criminal law, and personal injury
matters. We look forward to working with you on your case, and thank you
for the opportunity to do so.