As social media continues to expand, more people are documenting their lives online. Statista states that Facebook had 256 million monthly active users in the United States and Canada during the second quarter of 2020.
When it comes to litigation, Facebook and other social media sites can provide strong evidence during the discovery process. Below, our social media investigators discuss Richards v. Hertz Corp. and how privacy settings can affect social media evidence.
Richards v. Hertz Corp. – Understanding Case Law
In Richards v. Hertz Corp., the plaintiff claimed she suffered personal injuries after an auto accident that prevented her from playing sports. She also alleged that her injuries became worse during cold weather conditions. However, the defense found public pictures on Facebook showing the plaintiff skiing.
The defense served a discovery demand that requested access to everything posted on her account (i.e. statuses, photos, videos) since the date of the accident. The court denied the request and instead ordered the plaintiff to turn over every photo on Facebook depicting her participating in a sporting activity.
The defense appealed this order, arguing that the pictures proved there may be more information on Facebook relevant to the case. The court said the plaintiff’s Facebook profile may also contain private material irrelevant to the case. Instead, the court ordered an in-camera review. During the in-camera review, the court privately analyzed the plaintiff’s private Facebook posts and removed anything irrelevant to the case.
Social Media Takeaways From Richards v. Hertz Corp.
What does this case teach us? It teaches us that privacy settings do not necessarily stop opposing litigants from viewing social media posts. Privacy settings do play a role; however, they do not offer absolute protection in litigation.
In this case, the tipping point for the courts seems to be the public photo the defendant found. Since that photo indicates the subject may not be as injured as she claimed, the court felt it was proper to further explore the private portions of her profile, which would contain additional evidence relevant to the case. Similar to Vasquez-Santos v. Mathew, this case follows an established body of social media case law that private social media content is discoverable, as long as it is relevant to the case.
However, it is important to have a social media investigator on your side. Courts will dismiss your social media evidence if you cannot prove authenticity and authorship. You must also meet certain evidentiary requirements.
Social Media Privacy and How It Affects Social Media Investigations
Online and social media privacy continues to be a nationwide concern. Facebook and other platforms continue to develop their user privacy settings and data practices. Investigation tools that work today may not work tomorrow. Our social media investigators regularly adjust to changing platforms.
You want a social media investigation team on your side that has years of experience and a wide array of tools and techniques. We always use the most current software and discovery practices to efficiently extract and preserve the evidence you need.
Contact Our Social Media Investigation Team
Bosco Legal Services, Inc. is an industry leader in social media investigations. We provide investigation services to law firms, insurance companies and businesses nationwide. Call us at (877) 353-8281 or contact us online to learn more about our services. You can also submit a job form to get started.