Swipe up for discovery

The new rules of social evidence, where one viral image can gut your claim

2025 October

In the digital age, every tweet, selfie, and TikTok dance lives under the broad lens of California’s Civil Discovery Act, which scoops up any non-privileged byte that could tilt a fact of consequence. Defense lawyers know it: they scroll, screenshot, and seize on moments where a supposedly “home-bound” plaintiff is caught hitting the slopes or clinking glasses. One viral image can gut damages claims, teeing up summary judgment or slashing a verdict. Forget hiding behind privacy settings – if it’s online, assume opposing counsel already has it. This article unpacks the governing rules and offers playbook strategies for defusing social-media landmines in premises-liability and auto-accident litigation.

Scope of social-media discovery

California discovery casts a wide net: Anything that isn’t privileged and might lead to admissible evidence is fair game. (Code Civ. Proc., § 2017.010.) In practice, this means that if a social-media post tends in reason to prove or disprove any disputed claim or defense, it is presumptively discoverable. (Evid. Code, §§ 210, 350.) Conversely, information about issues that are not disputed is irrelevant and inadmissible under California law. This is a powerful tool for defense counsel that they take full advantage of by issuing comprehensive discovery requests for social-media content. These may include interrogatories asking for a plaintiff to identify all social-media accounts (Facebook, Instagram, Twitter, TikTok, etc.), and document requests for posts, photos, videos, messages or activity feeds covering a broad time span around the accident. The responding party must produce non-privileged material that is relevant and “reasonably calculated” to lead to admissible evidence.

However, “discoverable” isn’t synonymous with “infinite.” California Evidence Code is the umpire that calls out-of-bounds plays, letting courts bench overbroad or irrelevant fishing expeditions. (Evid. Code, § 352.) Likewise, California courts have applied this statute to disallow wasteful or highly prejudicial discovery.

In Gouskos v. Aptos Village Garage, Inc. (2001) 94 Cal.App.4th 754, 761, the court nixed discovery that would have bogged the case down in “time-consuming hearings on remote, collateral issues,” finding the marginal probative value didn’t justify the hassle. As a result, it’s paramount for plaintiffs’ counsel to ensure social- media discovery requests are narrowly tailored to the relevant claims. Insist that the defense narrowly define any social-media subpoenas or requests to only those posts that are likely to impeach a claim or defense.

No reasonable expectation of privacy on social media

Plaintiffs often assume that private accounts or posts shield them from discovery. Don’t bet your case on it. Under existing law, social-media information communicated through password-protected pages receives no reasonable expectation of privacy. In fact, the law highlights that users have no higher expectation of privacy in information voluntarily shared via social media than they do in any other written record. Indeed, as long as a plaintiff has knowingly shared photos or updates with anyone, even a limited “friends” group, the courts view it as voluntarily disclosed.

Thus, any public or friends-only post is fair game for discovery. As a practice pointer, the only true privacy workaround is preventing disclosure: counsel should warn clients not to grant social-media access to unknown people or “investigators,” and not to accept new friend/follow requests in connection with the case.

Preservation

Plaintiffs’ counsel must immediately implement a litigation hold when litigation is anticipated (for example, upon a demand letter or notice of claim). Every post, pic, DM, or disappearing Story that could matter (helpful or harmful) must be frozen in time. As the California Supreme Court emphasized in Cedars-Sinai Med. Ctr. v. Superior Court (1998) 18 Cal.4th 1, 12-13, counsel should “marshal and take charge of the client’s evidence” early in litigation. Fail, and you’re courting discipline, while your client faces a vicious one-two punch: lost evidence plus an ugly inference that whatever vanished would have torpedoed their case. CACI No. 204 and Evidence Code section 413 empower juries to assume the worst whenever evidence is willfully suppressed.

In practical terms, this means if the plaintiff deletes or hides social-media content after the duty to preserve arises, the court can impose sanctions – including monetary sanctions and an adverse-inference instruction to the jury. Counsel should document all preservation steps. Send a written “preservation letter” to the client confirming that social-media accounts must be preserved intact. Recommend that the client take screenshots of current profiles or download data now (to avoid any claim of lost content). Advise clients to disable auto-delete features on apps (such as Snapchat). And if the client has reason to believe relevant posts exist on others’ accounts (e.g., family members posted about the accident), counsel should consider subpoenas or letters to preserve those as well.

Spoliation!

If the defense screams spoliation, don’t panic, but be ready to show your receipts. Social-media deletion is treated like any other evidence destruction. To avoid sanctions, first, communicate with the court about your preservation efforts (e.g., lodge copies of accounts with the clerk under seal). If a motion to compel or sanction is filed, explain the timeline. For instance, show that any deletions occurred before a preservation demand, or without bad faith.

Pre-litigation client advisories

Before the ink even dries on the intake form, plaintiffs’ counsel should lay down these no-nonsense, high-stakes do’s and don’ts (tailored for premises-liability and auto-injury contexts):

Do preserve beneficial posts. If the client posted photos or comments about pre-accident activities (e.g., exercising or playing sports), that establishes a baseline of health that could support future damages, counsel may want clients to make copies of such posts or print them now. (These photos might help show the extent of the injury by contrast, or simply provide context for “before and after.”)

Do preserve all posts after the accident. Any entries about pain, treatment, or limitations should be kept. Clients should also save medical appointment reminders, therapy progress photos, or anything showing how they are coping.

Don’t post anything about the claim. Instruct clients not to write about the accident, injury, or lawsuit online. This includes complaining about defendants, speculating on liability, or discussing injuries. Even venting about pain or treatment can be misconstrued.

Don’t post content undermining the injury. Pictures or videos of vigorous activities (driving, dancing, sports, heavy lifting, etc.) can be used to argue the plaintiff’s symptoms are exaggerated. Have clients avoid posting new lifestyle images during recovery.

Manage privacy settings carefully. While strict privacy settings aren’t foolproof, advise clients to tighten their accounts (lock them down) and to remove any strangers. Warn them that defense counsel or investigators could create phony accounts to “friend” the plaintiff. No one should accept friend requests or connect with unfamiliar profiles once a claim is likely.

Notify counsel before deleting accounts. If a client feels overwhelmed by social media, they may consider deactivating an account. Counsel should instruct that deactivation should only be done after preservation of content and in consultation with an attorney. Never delete an account without first saving any evidence.

These steps should be memorialized in writing. A short client letter or email can reinforce that social-media evidence must be kept. Attorneys who document these instructions protect both the case and themselves.

Discovery practice and limitations

Once litigation is underway, expect the defense to come knocking on your client’s digital front door with a subpoena in hand. They’ll demand the whole nine yards: every photo, story, and late-night status update; GPS breadcrumbs and “On This Day” memories – anything that might paint a different picture of pain and suffering.

However, if the defense’s requests are overly broad, plaintiff’s counsel should object or move for a protective order under Code of Civil Procedure section 2025.450. Argue that the requests go beyond the “relevant” issues in the case. Likewise, if the burden of collecting and reviewing massive social-media data is disproportionate to its likely relevance, courts will cut off the demand. California courts have ruled that “undue consumption of time” and “substantial danger of undue prejudice or misleading the jury” justify limiting discovery.

Excluding and striking social-media evidence

Once defense counsel attempts to admit social medial evidence, plaintiffs’ counsel should be prepared to move aggressively to exclude improper social-media evidence at trial. Common grounds include lack of authentication, irrelevance, hearsay, and prejudice as discussed above. For example:

No foundation: If the defense cannot prove a post was made by the plaintiff (no witness or digital certificate), the judge should refuse to admit it. In practice, defense often has the plaintiff or a friendly witness testify they made the post. But if authentication is disputed, object.

Hearsay: Posts or comments by others (even if about the plaintiff) should be excluded unless a hearsay exception applies. (For example, a family member’s Facebook comment that “John ran a marathon” is hearsay about John’s physical ability, and is inadmissible unless it meets an exception.)

Privacy/illegality: While not a common California doctrine, if evidence was obtained by illegal means (e.g., coercing a private login or hacking), that might bar its use. Note, however, that the Stored Communications Act generally prohibits subpoena of private messages, but any public content (even if protected by a login) can usually be discovered by subpoena and produced by the network operator. Avoiding this, counsel should simply focus on admissibility at trial.

Balancing under § 352: If a post has only marginal relevance to a disputed claim, argue that its admission would waste time or confuse the jury. For instance, a lengthy online diary of the plaintiff’s day-to-day activities may not be admissible in full if only snippets relate to the injury. A judge may exclude or limit such material as cumulative or prejudicial.

If prejudicial evidence is introduced over objection, counsel should move to strike it from the record and request curative instructions. In extreme cases, seek a mistrial. Likewise, any inflammatory or tangential social-media material (defamatory comments by third parties, unrelated rants, etc.) should be kept from the jury.

Conclusion

Social media now plays a central role in personal-injury litigation. Plaintiffs often make the mistake of believing their online life is insulated from the courthouse. In reality, anything posted or shared can become a double-edged sword – helpful if it corroborates the claim, and harmful if it contradicts. California courts admit social-media evidence under the usual rules of relevance, authenticity, and fairness. Plaintiffs must therefore treat their clients’ accounts as part of the evidence file from day one. By advising clients to avoid incriminating posts, preserving all relevant content (even if unfavorable), and challenging any untoward social-media evidence at trial, counsel can prevent innocent posts from sabotaging the case. As one commentator aptly put it: Social media “can serve as crucial evidence, supporting a case or potentially undermining it,” but admissibility “follows the rules of evidence” that demand relevance and reliability. Staying vigilant about social media is no longer optional – it’s essential to protecting the plaintiff’s case.