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Asked 11 months ago - Santa Monica, CA
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One of my Facebook friends and I exchanged messages that could not be viewed by anyone but the two of us. At some point we did not see eye to eye and the Facebook friend said he was going to use some of these messages that I thought were private in count. I made it abundantly clear that I did not want those messages viewed by anyone but the recipient and especially not in court. He told me that a attorney advised him that because it was on a public website I had no expectation of privacy. Can depriving messages that we exchanged on Facebook be used in court without my permission?
Thank You
The first question is whether any message that you wrote on FB can constitute admissible evidence in a court proceeding. Is the message relevant to any issue that remains in dispute at at trial? If so, can your friend prove that you actually wrote it (you would have to admit the point in a discovery response, during your deposition or while on the stand). Even if it is relevant and authenticated, it remains hearsay unless you are a party to the case and it is offered against you. If it is hearsay, which exception to the hearsay rule is applicable, if any? (Yoru friend's attorney would have to figure this out). Even if it is otherwise admissible, can it be excluded on the ground of a privilege, such as your expectation of privacy? The answer to this last point is likely, "no," since you posted the message to your friend on a public website. Assuming it is relevant, a skillful attorney can overcome the hearsay rule, using it if nothing else as evidence of a prior inconsistent statement in order to impeach your testimony, and moreover if you are a party it can be used against you and is not considered hearsay. But is it relevant? Have you admitted that you were the one who posted it? Sometimes making a big fuss over evidence that will anyway be admitted serves only to call excessive attention to it. This the best I can do without more information. Best regards.
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