When suing for emotional distress, don’t ambush yourself with peppy posts on social media

When suing for emotional distress, don’t ambush yourself with peppy posts on social media

Melissa sued Cuesta, the school district, and school officials, seeking damages for, among other things, “repeated sexual injury and assault,” “nightmares and sleep deprivation,” “emotional distress,” “alienation of affections,” and “loss of enjoyment of life.”

Soon, lawyers for the school district started poking around Melissa’s Facebook feed. Melissa’s account was mostly locked to outsiders, but some pictures were visible: Melissa hanging out with her boyfriend, Melissa working at a veterinary hospital, Melissa rock climbing, Melissa out drinking with friends. They even found a second Facebook page, a joint account run by Melissa and her boyfriend. Melissa’s blithe Facebook activity didn’t exactly square with her contention, in a deposition, that she suffered from “serious trust issues with everyone” and was “struggling” in her relationship with her boyfriend. Nor did it support her claim of “loss of enjoyment of life”…

Even the most banal of Facebook sentiments can now be used against you in a court of law. A former general manager of a Burbank, California, Home Depot sued the company for gender discrimination in 2011, claiming that she’d been wrongly fired and experienced anguish, anxiety, and isolation from friends as a result. So Home Depot dredged up dozens of posts on her Facebook wall from friends wishing her a happy birthday. Would a truly isolated woman get so many birthday wishes on Facebook? The case was settled out of court.

Facebook is a particularly lush resource for fending off civil suits. But peppy social media postings have been used as ammunition in all kinds of cases. In 2004, a 19-year-old Connecticut woman lost control of her car while driving drunk and killed the friend sitting in her backseat; she served a year in prison, then got hauled back to court in 2009 for violating the terms of her parole. Facebook photos of the woman drinking beer at a Yankees game and partying at the Waldorf weren’t key to her second conviction, but the judge leaned on the images during sentencing. “Where is the remorse?” he asked. “Every one of these pictures looks like you have forgotten about what happened.” (He locked her up for three more years.)

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