You are injured in New York and decide you're going to bring a lawsuit seeking compensation for the harms and injuries you suffered.
You decide it's so much easier to communicate with your attorney by e-mail, that you begin sending him messages via e-mail. Then you went on Facebook and realized that your attorney is also on Facebook. You decide to “friend him” and he reciprocates and does the same for you.
You decide it's so much easier to communicate with him via private message on Facebook than sending him e-mails.
Your private messages talk about strategies and tactics for your lawsuit. It concerns detailed information about how your accident happened and the extent of your injuries. You feel confident communicating with your attorney this way because it's so convenient and easy.
After you recuperate from your injuries, you went on a number of trips and participated in many great outdoor activities including mountain climbing, skiing, hiking and bike riding. You eagerly post pictures of all your activities on Facebook to show your friends and family where you went and what you did.
You never considered the possibility that those photos would contradict statements that you made about your activity levels and those things you are limited from doing and those activities you are no longer able to do.
In your lawsuit, your attorney claimed that you were unable to do most physical activity.
What you didn't realize is that the defense and their minions were scouring the Internet for any dirt they could dig up on you about your activity level.
What you didn't realize is that the defense was looking for any information that would contradict what you're claiming in your lawsuit. Now that they found contradictory information, they sent off a written demand letter to your attorney seeking access to your entire Facebook account.
The defense wants to see your posts and your photographs, even those that you deleted.
You are outraged. You're upset. Nobody told you you should not be posting things to social media and Facebook about your daily activities and how you were feeling. Now there's clearly contradictory information online compared to what you claimed as part of your lawsuit.
The biggest concern you have is will the defense have access to your private messages on Facebook between you and your attorney?
CAN THE DEFENSE GAIN ACCESS TO YOUR FACEBOOK ACCOUNT?
To answer the first question, we have to evaluate whether in fact there is any suggestion or any contradictory material that resides or at one time did reside on your Facebook page. If the defense has a good faith basis to believe there are contradictions, and can show that to the court, they stand a much greater chance of having the judge agree to give them access to your Facebook account.
CAN THE DEFENSE SEE YOUR PRIVATE MESSAGES BETWEEN YOU AND YOUR LAWYER?
The second part of that evaluation is to recognize that all communications between you and your attorney are privileged and confidential. That means that those communications, whether they are by telephone, in writing, electronically by e-mail, or some other form are protected and privileged from being disclosed.
Your attorney could raise a good argument that these privileged communications, regardless of where and how they took place, are confidential. Contrast this argument with a criminal in jail who communicates with his attorney via a jailhouse telephone. In jail, a criminal typically has no right to privacy. Often, the jail will post signs indicating that the jail is recording and monitoring all conversations that occur on their jailhouse phone.
Keep in mind that this is a civil lawsuit where you are seeking monetary compensation. You still have an expectation of privacy when communicating with your lawyer, even if these communications occurred on a social network in the form of private messages.
A LOGISTICAL NIGHTMARE
If the judge gives the defense access to your social media account, there will likely be a logistical nightmare in giving access to the defense to view your Facebook account yet somehow limit them from gaining access to see private messages with your attorney. The court will have to craft some type of exception that will allow the defense to see your public posts and those posts that you had previously deleted and not allow them to see your private communications with your attorney.
With the prevalence of social media and ease of communication today using social media and electronic communication, people seem to think that because it is so easy to communicate that is also easy to conceal their communications simply by deleting them from your computer or smartphone. This is not true. Those e-mails and those communications reside on a server somewhere.
There is always the possibility that someone can hack into that server or ask a court for permission to gain access to those servers.
The bigger warning here is that if you suffered an injury as a result of someone's carelessness and now you decide to bring a lawsuit, under NO circumstance should you be using any type of social media. You should NOT be posting anything to Facebook, Google+, Twitter, LinkedIn to discuss anything about your accident and your lawsuit.