Back in 2014, a Miami area prep school failed to renew its principal’s employment contract. The principal filed suit for age discrimination resulting in a settlement for $150,000.00. However, $80,000.00 of the settlement would be surrendered if the principal were ever to disclose the terms of the settlement to anyone other than his wife. Unfortunately for the principal, his daughter subsequently posted on Facebook that the school “is officially paying for my vacation to Europe this summer. SUCK IT.” From this single social media post, the school was able to prove that the principal breached confidentiality by telling his daughter about the settlement. For the steep price of $80,000.00, a former principal learned two things: (1) carefully examine the language of a confidentiality agreement, and (2) never tell a teenager something you don’t want on social media.
The proliferation of social media has made it easier than ever for attorneys to research opposing parties and to discover negative information about them. For example, in disputes during divorce and custody of children, attorneys will hone in on social media involving:
- Disparaging comments about the other spouse
- Pictures of alcohol consumption or drug use
- Pictures of a girlfriend or boyfriend
- Pictures of your children in a setting that suggests inappropriate supervision
- Information about assets you may not have disclosed to your spouse
- Gift, entertainment or travel expenses for a boyfriend or girlfriend
- Hotel or apartment receipts for an extramarital affair.
Similarly, workers’ compensation, employment, and personal injury disputes will often involve a careful combing of social media accounts.
The simple solution would seem to be filtering and censoring your social media accounts when faced with possible litigation. However, deleting or altering your accounts can lead to even bigger problems. As social media may be used as evidence in cases, tampering with social media accounts can give rise to claims of spoliation of evidence, which may result in sanctions against a party in court. While it is tempting to “clean up” a Facebook account during pending litigation, a judge would likely find that such behavior was done in bad faith, wasting the time of both the opposing counsel and the court. The resulting sanctions would likely be significant and could even potentially be dispositive of the case itself.
The simple fact is that in Illinois, as well as other states, your social media accounts are discoverable. The posts, pictures, videos, and other statement made on an account could be pulled from the internet and used as evidence in a legal proceeding. While it may seem tempting to deactivate and account or delete posts, such an action will likely to lead to reprimands in court. Even then, the social media sites will likely still have copies of the deleted posts. Instead, once again proving the age that an ounce of prevention is worth a pound of cure, it’s better to scrutinize your social media use in the first place: once it’s online, it’s likely there forever.