Social media evidence is not only about using it in a personal injury action to impeach the injured party’s testimony as to what caused the accident or his or injuries; it can be used by defendants against the “poster” in many other types of litigations. As the recent decisions discussed below make clear, counsel simply needs to be creative and “think outside of the box” as to how to effectively utilize social media. Social media is also frequently the basis for defamation claims, and where public posts go too far, as in Carey v. Ripp, 2018 NYLJ LEXIS 2405 (Sup. Ct. Nassau Co. July 16, 2018), a court may order the destruction, deletion and/or removal of defamatory information in defendant’s possession, custody and control, including posts on defendant’s Facebook page.
In landlord-tenant proceedings, where the issue may be whether the person lived in an apartment during a certain period of time, social media evidence has been ordered to be produced in redacted form to the extent it identifies where a person is living, which electronically stored information might include critical geo-locational meta data. Similarly, in a Labor Law case, where the issue was which defendant entity was entitled to summary judgment, the injured worker’s social media post which identified plaintiff’s location and what piece of equipment was used proved important evidence on summary judgment. Social media evidence can also be critical in breach of restrictive covenant cases.
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