Forewarned is forearmed: Your social media records will (eventually) be subpoenaed

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lady justice on 20 February 2010 - day 51
Image by Leonard John Matthews via Flickr

Few and far between are the consumers who at this point don’t realize Facebook, Google, Yahoo and virtually every other online player of consequence is collecting data about your online activities. What most consumers fail to consider is that almost any of that data can be subpoenaed in a court of law.

Are you filing a workman’s compensation claim against your employer? Be prepared for them to subpoena your Flickr photos and Facebook status updates to determine if you were actually suffering in the aftermath of your injury, or bodysurfing like a healthy, uninjured everyman. Even if those bodysurfing photos were simply mis-timestamped, you’re in for some interesting explanations before the judge and jury.

Got a sexual harassment lawsuit brewing? Be prepared for your Twitter updates and Foursquare check-ins — including the bawdy comments from the dance club at 2 AM — to be brought to bear in the case. An insider trading investigation on the horizon? Your Yahoo Finance search queries and StockTwits posts are fair game.

Granted, whatever social media data that qualifies as evidence will be given to your attorney during the discovery phase of a trial, but that isn’t a sufficient social media defense for two reasons: You may not be aware of the subpoena in a timely fashion, and not every legal action reaches litigation. As to the first point, some prosecutors are prohibiting social networks from revealing subpoenas until the discovery phase, so defendants are blindsided during the early phases of a lawsuit or prosecution. As to the second point, most lawsuits are settled out of court before the completion of the discovery phase. You don’t want to know less than your accuser — or to know it later — so it’s best to have complete knowledge of your social media liability before its sprung on you in a deposition.

That’s why you want a searchable archive off all your social media data. Use it in your defense before it’s used against you.

Hope you’ve got a backup plan.

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