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Ask the Lawyer By: Daniel A. Gwinn, Esq.

| March 6, 2017

LOOKING FOR ANOTHER WAY TO GET IN HOT WATER DUE TO FACEBOOK? WE FOUND IT.

QUESTION: I’m involved in a law suit, and I’m worried that some stuff I posted on Facebook could make me look bad. Is it OK to close my FB account and get rid of the posts?

ANSWER: Once you are involved in a lawsuit, you are under an obligation to preserve all evidence that relates to the lawsuit. Even negative evidence. Your Facebook posts very likely constitute evidence – if you think they are relevant to your case, it’s likely the opposing side does, too.

That said, if the opposing party has not asked for the information, you may make the post private – hide it – as long as you do not destroy or delete it.

If you destroy evidence after a lawsuit has been filed – and especially if you destroy evidence after the attorney for the other side has asked for relevant evidence (a Discovery Request) – you could be subject to sanctions for “spoliation” of evidence, or, in plain terms: destroying evidence could cost you a lot.

A few years ago, a lawyer and his client in Virginia got an expensive lesson on the cost of destroying an FB post, when they were fined, jointly, over $700,000. The attorney, who had told his client to “clean up” his FB page, had to pay over $500,000. The client, who had sued a company after his wife was killed in an accident caused by the negligence of one of the company’s drivers, had posted a picture of himself drinking beer, wearing a T-shirt stating “I heart hot moms,” and surrounded by young adults. The man worried that the picture could be used as “evidence” that he was not upset over his wife’s death!

Destruction of evidence can also injure your chances at trial. If a judge finds there was spoliation of evidence that was important to the other side, he or she can instruct a jury to consider the facts presented in favor of the party denied the evidence.

Social media and Facebook posts present other problems. If you post information related to your case on Facebook or other social media, you may be viewed as having waived the attorney-client privilege. In addition, what you post on Facebook or other social media might be seen by an employer, potential employer, or the authorities, and could cost you a job – or even your freedom! In one case, a judge revoked the probation of an underage college student, convicted of an alcohol offense, after he saw her drunken Facebook post in which she was pictured drinking a beer, with a caption that ran to the effect “F— you, Judge!”

Even when you post material on social media sites anonymously, it is possible that the posts may eventually be tracked back to their source – you.

If you find yourself in trouble because of something you have posted, contact an experienced attorney to help determine whether the information can be used against you, and how to limit the damage.

The lawyers at GWINN TAURIAINEN are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website at www.gwinntauriainenlaw.com

GWINN TAURIAINEN PLLC is a Troy-based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

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Category: Featured Column

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