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Logged out for good? A case of Facebook activity post-mortem

By: James White

Facebook: We love it, we hate it, we post way too much information on it.  But what if some day you were ordered by a court to turn over your entire Facebook account – including private content – to an opposing party in a lawsuit?  Some would probably drop the case in an instant.  Most don’t let their family and friends see their Facebook accounts, let alone an opposing party in a lawsuit.  Now consider this: What if you passed away and your family was later ordered to turn over your Facebook account as part of a lawsuit?

One Illinois federal court recently considered these issues.  In the wrongful death case of Estate of Ye v. Cliff Veissman, Inc., currently pending in the United States District Court for the Northern District of Illinois, the defendants requested a complete archive of the Facebook accounts of the decedent and her next of kin going back seven years.  The plaintiffs refused to turn over the information and the defendants requested the court order them to do so.  The court declined, finding the defendants’ requests to be overbroad.  However, the court found a more narrowly tailored request may be valid, noting that while “Defendants’ all-encompassing request captures communications with third-parties that have no apparent relevance to the issues in this case,” there is “[c]ertainly some social media content during the time period prior to [the decedent’s] death” that is relevant to the case and would be discoverable.

So what’s the most important takeaway from the court’s ruling?  GET RID OF YOUR SOCIAL MEDIA ACCOUNTS.  No, you don’t have to do that – how would you make it through the work day? However, you should certainly be thoughtful when using social media.  Perhaps it’s too stringent to ask yourself: “Do I want my family/friends/enemies finding out about this after I’m gone?” before posting something or sending a not-so-private message.  However, this recent case shows your Facebook archive is not out of the reach of parties to a lawsuit, even after you’ve logged out for good.

If this post has you thinking, stay tuned for next week’s blog post, in which we discuss estate planning for millennials, including how to protect your digital assets.