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New York Civil Litigation Review

Posting personal information on the internet can be hazardous…if you are a litigant!

Posted in e-Discovery and Social Media

Everyone that has watched a ‘cop’ television show or movie has heard the following phrase: “you have the right to remain silent…anything you say can and will be used against you”. Most of us can also probably recall the origin of that phrase; for those who cannot, I will remind you. The phrase comes from Miranda v. Arizona (384 U.S. 436), a landmark 5-4 decision of the United States Supreme Court handed down in 1966. As relevant to this blog post, the case basically states you can, if you so choose, remain silent when the police interrogate you. For that matter, anything you say to the police can be used to prosecute you. Now for the fun part, the new developments in the law that keep us attorneys on our toes. The new adage, more relevant to the internet age is as follows: “anything you post online can and will be used against you”.

Today, due diligence suggests that lawyers and law firms routinely search social network and broadcast sites to acquire information about various parties in their cases. (See New York Law Journal, Metadata Meets Facebook E-Discovery – May 1, 2012). The case law in New York is still evolving, but the basic premise is that you cannot “trick” someone into “friending” you on a site such as Facebook to access his or her profile, but any public content posted is admissible. As such, any videos put on Youtube, blog articles, or reviews on sites such as Yelp are fair game. The bottom line? Be prudent about what you post on the internet. For example, if you are a physician, lawyer or any other professional for that matter, avoid uploading anything potentially harmful to your character or credibility; use common sense. As an example of what not to do, see this blog post by Dr. Ken Broda-Bahm on the Persuasive Litigator … it just might cost you in court.