Anything You "Can and Do Post" May Be Used As Evidence against You

New York, NYAnd, you have the right to remain silent, except for those things you posted on your Facebook page, or you tweeted or otherwise sprinkled throughout cyberspace for all of eternity. Personal injury attorney Neal Goldstein, from Goldstein & Bashner in New York City and Long Island, is constantly reminding clients to be careful about what they are sharing on social media sites.

"Ten years ago a tweet was something a bird did and upload was something three strong guys did when they were lifting something," says Goldstein, a very approachable and veteran litigation lawyer. "But that has changed."

"I tell my clients to be mindful of what kind of social media activities they engage in," says Goldstein.

And the information found there can cut both ways. "When I am involved in litigation, I research my own clients on social media and I research my adversaries," he adds, "I Google them, to see if there is anything I can use to bolster my case. I use it as a tool."

Lawyers can and are making motions to the court to release an individual's cyberspace files. It doesn't matter that the information is in cyberspace and it doesn't matter that the information might be "password protected."

Some judges, faced with a motion for access to social media files of an individual, have denied the request, fearing it may be prejudicial or constitute invasion of privacy. However, that is not always the outcome.

"I have seen many decisions go the complete opposite way," says Goldstein. "What you say on Facebook or Twitter, like anything else in written or orally, can be used against you."

For example, Goldstein lays out a scenario where a plaintiff claims he or she has sustained an injury and he or she is unable to work or drive. "If he's on Facebook he is saying 'I just bench pressed 250 pounds,' even if he's exaggerating to impress somebody that might be enough good faith for a judge to order the release of more information."

And that could be a major factor in determining the outcome of a trial, as Goldstein warns clients.


Neal Goldstein earned his law degree at New York Law School in New York, and has been practicing law for nearly two decades. He has made substantial recoveries for clients who have suffered significant personal injuries. He represented employees of Long Island Railroad, Amtrak and Metro North in their claims against the company. He is frequently consulted by parents of children who have been the victims of cyber bullying.