Most people use some form of social media. Some of the most heavily-trafficked social media sites are Facebook, Twitter, LinkedIn, Instagram, Pinterest, Tumblr and Google+. Ironically, despite the fact that social media users voluntarily post photos and text on these sites, I do not think most people consider it to be public information. At least, they do not expect it to pop up in the discovery phase of their lawsuit, which is the time during a case when the opposing party can request information relating to their claims (including emails, paper records, etc.).
Even though social media sites generally have some form of privacy setting, the sites do not guarantee complete privacy. Because of that fact, many courts have ordered litigants to turn over their social media content to the opposing side during discovery. Litigants should be aware that potentially discoverable information includes social media profiles, wall postings, current and historical pages, including deleted pages, and related metadata (e.g. geotags).
One example of how social media can lead to problems in litigation is as follows:
Bob claims that he hurt his back in a car accident and that it makes everyday tasks more difficult for him. One week after filing a lawsuit against the driver who ran a red light and hit him, Bob uses Foursquare to “check in” at the gym down the street. Bob’s friend also posts a photograph on Facebook of Bob, which is time and date stamped, tags Bob and captions it “pumping iron.” During discovery, the other side asks Bob to turn over all social media content related to his claimed injuries. Even though Bob’s social profile is set to “private - friends only,” the judge orders him to turn over the content. Bob’s case is damaged by his social media content because he looks like he was not truthful about his injuries.
To protect yourself, you should assume that anything you post online can become a part of your case. In addition, check the settings on your smart phone (e.g. iCloud and location services settings) so that you are informed about what data your electronic device is collecting. In sum, courts have become more familiar with social media and you should be aware that your activity on social media sites could be used against you in your case.