With a proper foundation according to the Rules of Evidence, social media posts are evidence in both civil and criminal cases. The Rules harken back to old forms of communication like paper letters exchanged or mailed through the various postal services. What a person might have written to a co-conspirator on paper is no different than posting a comment or longer thought-piece on social media. The real differences between the older forms and the new forms are photos and videos, which present their own types of information and evidence in a nearly permanent format. For a few examples of how social media posts can be used — both for and against — a litigant, see this Forbes media article.

So, how do attorneys litigating a case find your social media? First, as noted in the Forbes article, copying and using publicly posted social media as evidence is perfectly legal. It does not “count” as some form of spying or illegal surveillance. If you have posted something publicly, then it is “public” for the lawyers and judges, too. The methods here mostly involve internet search engines looking for social media posts linked to the names of those involved in the litigation. Quite a bit of information is obtained using such simple search methods. There is also more specialized legal industry software that can be used to optimize internet searching.

Second, the same rules about postings being “public” apply even if a person has posted something from an anonymous account. If it is posted publicly, then it is “fair game” for use as evidence.

Now, with anonymous posting, the “trick” is to get beyond the anonymity. For lawyers engaged in litigation, that is relatively easy. Part of litigation involves a process called “discovery.” This is allowed by the Rules of Evidence and involves, among other things, issuing written questions from one party to the other and taking oral testimony. One — now-common — set of written questions involves asking for a list of social media accounts, INCLUDING anonymous accounts. Unless the judge blocks such questions, the answers must be forthcoming and the answers must be truthful.

Once anonymous accounts are identified, then there is another round of internet searching. Again, a great deal of information will be uncovered by such search methods. Further, once social media accounts are identified, after requests from one party or another, the judge can order the litigant to disclose the full content of the social media account, including copies of social media postings that are set in “private mode,” that are no longer “public,” or that may have been deleted. For what it is worth, this is also the method for obtaining copies of emails, DMs, text messages, and the contents of smartphones and to get copies of non-public paper correspondence and personal notes.

The process of discovery will also invariably ask for photos and videos relevant to the issues in the case. These requests will be broad enough to cover photos and videos that may be located in social media accounts.

Deleted social media posts are more difficult to uncover, but attempts can be made through the hiring of experts who might have the training and experience to recover what has supposedly been deleted. Such deleted postings might still be resident on hard drives, portable drives, and other devices if not deleted with the proper software.

Contact the Social Media Attorneys at Revision Legal For more information, contact the experienced Social Media Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.

Social Media Discovery: The Formal Legal Tools Lawyers Use

Beyond basic internet searches, attorneys use the formal discovery process to obtain social media content that may be private or not easily accessible through public search. Under the Federal Rules of Civil Procedure (and parallel state court rules), parties in civil litigation have access to several discovery mechanisms that can reach social media content:

• Interrogatories: Written questions requiring a sworn answer. Standard interrogatories in personal injury, employment, and commercial litigation now routinely ask for a comprehensive list of all social media accounts, including handles on every platform and accounts no longer active.
• Requests for production: Formal demands to produce documents, which courts have consistently held include electronically stored information (ESI) — including social media posts, direct messages, and metadata. A litigant may be required to produce screenshots, export archives, or authorize platform access.
• Subpoenas to social media platforms: Under the Stored Communications Act (18 U.S.C. § 2702), attorneys can subpoena social media platforms for user account information, content, and metadata. While platforms challenge overbroad subpoenas, targeted requests for specific account data are regularly complied with.

Preservation Obligations: What You Cannot Delete Once Litigation Is Anticipated

Once a person or company reasonably anticipates litigation, a legal duty to preserve potentially relevant evidence arises immediately — even before a lawsuit is formally filed. This duty, known as the litigation hold, extends to social media content. Deleting social media posts after receiving notice of a lawsuit, or after an event that makes litigation reasonably foreseeable, can constitute spoliation of evidence.

Courts have imposed severe sanctions for social media spoliation, including adverse inference instructions (telling the jury to assume the deleted content was harmful to the deleting party), monetary sanctions, and in egregious cases, default judgment or dismissal. In Lester v. Allied Concrete Co., a Virginia court sanctioned a plaintiff hundreds of thousands of dollars in attorneys’ fees after his lawyer instructed him to “clean up” his Facebook page before a deposition — the page contained posts inconsistent with his damages claims. The lesson is unambiguous: do not delete social media content once litigation is on the horizon.

What Social Media Evidence Is Most Commonly Used in Litigation

The types of social media evidence that attorneys most actively seek in litigation include:

• Photographs and videos inconsistent with claimed injuries (personal injury cases), emotional distress claims (employment or discrimination cases), or other factual assertions
• Statements about the events in dispute made before the litigation, which may contradict later sworn testimony
• Posts showing activities, travel, social engagements, or income inconsistent with claims of disability, lost earnings, or distress
• Communications with potential witnesses, co-conspirators, or opposing parties that are relevant to the claims
• Business activities and commercial statements relevant to trade secret, non-compete, or employment disputes

Whether you are involved in litigation or want to understand your rights and obligations regarding social media content, Revision Legal’s litigation and internet law attorneys can advise you. Contact us at 231-714-0100 or 855-473-8474.