The Hidden Dangers of Social Media in Litigation How Your Posts Become Evidence

In the modern courtroom, the most powerful witness may not be a person, it may be a post. What individuals share online can have a direct impact on how their credibility, intent, or damages are evaluated in court. From civil lawsuits to criminal defense matters, social media content has become a routine source of discovery, often carrying more evidentiary weight than traditional documents.

Under Washington’s Civil Rules and the Federal Rules of Civil Procedure, electronically stored information (ESI), including social media posts, direct messages, photos, and even deleted data, can be requested and compelled in discovery. Understanding how these rules apply is critical to protecting your rights and reputation during litigation.

The Expanding Role of Social Media Evidence

Courts across the country, including those in Washington, now view social media accounts as discoverable sources of evidence. What was once private communication is now treated as potential proof of behavior, intent, or truthfulness.

In civil litigation, opposing counsel may request social media content that contradicts claimed injuries or emotional distress. In criminal cases, prosecutors often rely on posts, comments, or location tags to establish motive or opportunity. Even in family law disputes, judges may consider social media behavior when evaluating parental fitness or credibility.

Washington’s Civil Rule 26(b)(1) authorizes discovery of any nonprivileged material that is relevant and proportional to the needs of the case. That includes digital content shared publicly, or privately, if it could reasonably lead to admissible evidence.

What Information Can Be Discovered

Social media discovery extends well beyond what appears on a public profile. Courts may permit production of:

  • Posts, photographs, and videos relevant to disputed facts;
  • Private messages (DMs) exchanged on platforms such as Facebook, Instagram, or TikTok;
  • Comment threads showing communications or admissions; and
  • Metadata, including timestamps, geolocation, and device identifiers that authenticate when and where content was created.

Metadata has become particularly important in establishing authenticity. Under Federal Rules of Evidence 901 and 902(13)–(14), digital files containing verifiable metadata can be self-authenticating, providing objective proof that an online statement or image is genuine.

The Risk of Deleting or Altering Content

Once litigation is reasonably anticipated, all parties have a duty to preserve relevant evidence, including electronic data. Deleting or modifying social media content after that duty arises may constitute spoliation of evidence under Rule 37(e).

Depending on intent and prejudice, courts may impose sanctions ranging from cost-shifting to the most severe measures:

  • Exclusion of evidence;
  • An adverse inference instruction to the jury; or
  • Dismissal or default judgment.

Even well-intentioned deletions can be costly. The safest approach is to consult counsel immediately and preserve all potentially relevant data.

Balancing Discovery with Privacy

The discovery process can feel invasive, especially when it involves personal online activity. However, Washington law provides safeguards. Attorneys may seek protective orders under CR 26(c) to limit disclosure of private or irrelevant content, or to restrict how sensitive information is shared and stored.

At the same time, lawyers are bound by ethical duties of confidentiality and technological competence. Under Washington RPC 1.1 and 1.6, counsel must understand the technology involved in eDiscovery and protect client data from unauthorized access or exposure.

Best Practices for Clients During Litigation

If you are involved in, or expect to be involved in, litigation:

  1. Do not delete or edit posts without first consulting your attorney.
  2. Avoid commenting on the case or on parties involved.
  3. Preserve all accounts and messages, even those that seem irrelevant.
  4. Review your privacy settings, but do not rely on them as protection.
  5. Communicate through counsel before responding to any discovery requests involving your online activity.

These steps help protect your case, preserve credibility, and ensure compliance with court-ordered discovery obligations.

Social media has blurred the line between personal expression and legal exposure. A single post can undermine years of preparation or strengthen the other side’s argument. Proper legal guidance can make the difference between a strategic defense and an avoidable mistake.

At the Law Office of Erin Bradley McAleer, our attorneys understand how digital evidence shapes modern litigation. We help clients preserve, review, and protect electronic data while safeguarding their privacy and rights throughout the discovery process.