Social Disease

All of us have read newspaper articles, blog posts, and even law journal articles about the perils of Facebook and other social networking sites. We have added a section to our intake process about a prospective client’s internet activities. Last year I sent a standard letter to all my existing clients reminding them that their legal business is private and should not appear on their “wall” or otherwise be discussed online—not even with “friends.” And, earlier this year, a circuit judge in the Lowcountry ordered a plaintiff to produce profiles, photos, and lots of other info posted on Facebook and MySpace since the date of his accident.


My plaintiffs by and large suffer injuries to their homes. Most don’t experience physical pain or bleed, except for the cash required to correct shoddy construction. Still, I have seen materials on social networking sites that were not helpful. Posts gushing with praise for the builder in the days just after moving in, before the leaks and the mold. Petty and all-too-public disputes between members of a homeowners association. And things you just wish you had never learned about your client: membership in a neo-Nazi organization, his and hers Halloween costumes, and stuff that unfortunately didn’t stay in Vegas.

Now we tell our clients during intake that anything they have posted on line can and will be used against them, like a civil Miranda warning. We hope they go home and scrub their pages as clean as they can, but who knows? We tell them they should not post anything during the pendency of their cases, but they only hear not to post anything about the lawsuit. And we know that every defense firm in the state has a copy of Judge Young’s order compelling plaintiff to produce everything but his passwords for MySpace and Facebook. Can’t we just instruct our folks to shut down the account altogether and delete whatever they can from these sites? I think I know the answer.

How would we respond to a defendant who destroyed all its files on learning a claim was being made? It’s unlikely a Facebook wall would be substantive evidence in a case, but who could know if a party destroyed those posts? In most cases I send a preservation letter to defendants, with the summons and complaint or even before. How long until our clients begin receiving those letters from defendants and their lawyers or adjusters? And does our failure to counsel clients that their cases can be demolished by intemperate or stupid posts, expose us to professional liability claims? (OK, I know the answer to that one, too.)

Reading about a creative lawyer’s use of social networking site postings to cross-examine a party may have been an “aha moment.” I don’t think we have made our last surprised gasp, though, when it comes to social networking and lawsuits.