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With all your social media activity come legal responsibilities

An overwhelming majority of recent court cases have decided that social media accounts are discoverable, including privately locked accounts, private messages, even deleted posts.

The social media boom of the past decade has brought about a number of interesting and sometimes perplexing legal issues. Users posting information to sites Facebook, Twitter, Instagram, and Reddit, among others, must operate under the assumption that all posts, private messages and photos will later become “discoverable” in the event of a lawsuit. This general rule applies with the same force and effect to real estate brokers and agents.

Real estate agents carry errors and omissions insurance to be protected in the event a lawsuit arises. The nature of a lawsuit filed against a real estate agent can vary widely and will often include claims such as fraud, breach of contract, negligence, misrepresentation and even bodily injury.

Regardless of specific claims, the parties will undoubtedly engage in the information-gathering process known as discovery. During the discovery process, all information which is subject to disclosure is termed “discoverable.” Under the Federal Rules of Civil Procedure, information is “discoverable” in a lawsuit if the “information sought is reasonably calculated to lead to the discovery of admissible evidence.”1 Therefore, even if information is ultimately deemed by a judge not to be admissible in court, it can still be “discoverable.” Those same rules specify that electronically stored information is discoverable.2

In recent years a number of cases have addressed whether a party’s social media accounts are discoverable in a lawsuit. The overwhelming majority of these cases have decided that social media accounts are discoverable. Interestingly, this rule has been extended to privately locked accounts, private messages,3 even deleted posts.4 The reality is that if a real estate agent gets involved in a lawsuit, their social media posts will almost assuredly be viewable by the opposing party. With that in mind, real estate agents and agencies need to plan accordingly. The following precautions will assist real estate agents and agencies:

  • Be aware of how you use social media. Social media can be an extraordinarily powerful marketing tool for real estate agencies. But using it for marketing purposes comes with great responsibility. Posts and private messages concerning details of a specific real estate transaction are better left off social media. A seemingly innocent detail posted at the time of a transaction can appear incriminatory when viewed in the light of litigation months or years after the disputed event.
  • Update your document retention policy. Agencies should ensure their document retention policies include provisions covering social media posts and messages. Social media communication is similar to email and hard-copy letters, and thus will likely be analyzed under similar legal standards in the event of litigation.

Any document retention policy should also consider applicable state and federal document retention laws. Most states require real estate agents or brokers to retain records of each transaction. In the event these transactions are discussed or conducted via social media, such posts and messages must comply with those laws. It is always good practice to consult an attorney well versed in the laws in your specific state for help drafting a document retention policy.

Ralph C. Chapa, partner, Kaufman, Payton & Chapa, is an aggressive, experienced litigator. His practice concentrates on insurance coverage and commercial litigation, as well as professional, premises, products and general liability.

1 Federal Rules of Civil Procedure 26(b)(1)   2 Federal Rules of Civil Procedure 34   3 Reid v. Ingerman Smith LLP, 2012 U.S. Dist. LEXIS 182439, 2012 WL 6720752 (E.D.N.Y. Dec. 27, 2012)    4 Doe v. Rutherford County, 2014 U.S. Dist. LEXIS 114479 (M.D. Tenn. Aug. 18, 2014)

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