The Intersection of Fifth Amendment Rights and Social Media Posts – Wright v. Morsaw

With the dawn of the social media age came a burgeoning new field of law. Social media discovery has spawned a rash of appellate decisions covering everything from the discoverability of Facebook posts to the legal significance of emojis. But what happens when a Facebook post could be evidence of a crime? Does that post get Fifth Amendment protection against self-incrimination?

The above question was posed to Florida’s Fourth District of Appeal in Wright v. Morsaw, a wrongful death civil case. In Wright, it was alleged that the Defendant was intoxicated when he left a Delray Beach bar. The Defendant was accused of a hit-and-run crash that killed a pedestrian. After the fatal crash, the Defendant allegedly fled to a friend’s home where he posted about the incident on social media.

During the resulting litigation, the Plaintiff/Estate of the Decedent served discovery on the Defendant. The discovery at issue on appeal dealt with social media posts. There was an interrogatory asking the Defendant to identify all of his social medical accounts and a Request for Production requesting a signed authorization to obtain his social media data from Facebook, Instagram, and Snapchat. The Plaintiff also requested the Defendant’s credit card statements for the night in question, targeting evidence of intoxication. The Defendant objected to this discovery based on his Fifth Amendment privileges, arguing that the discovery sought was communicative in nature and could lead to self-incriminating evidence in the related criminal case. The trial court sided with the Plaintiff and ordered the Defendant to produce the discovery requested.

When the Defendant filed a writ of certiorari seeking to quash the discovery order, the Fourth District Court of Appeal sided with the trial court and denied the petition. The appellate court noted that the Defendant failed to prove a link between the requested discovery and the evidence needed to prove him guilty of the related criminal case. While the credit card statement might prove he spent money at an establishment that served alcohol, that evidence alone cannot prove that the Defendant was drinking or intoxicated. Regarding the social media discovery, the Defendant did not conclusively establish how it could provide a link to incrimination. Moreover, the appellate court noted that the Defendant posted this data to the public! It was unreasonable for the Defendant to expect that a privilege would attach to a social media post that the Defendant shared with thousands of people.

The court also pointed out that the Defendant had failed to provide a copy of the transcript from the trial court hearing on the discovery issue. The Court noted, “petitioner does not contend that he proffered information to the trial court in order to demonstrate the testimonial or communicative nature of the social media and financial record.” Based on the above, the appellate court was not going to overturn the trial court’s discovery order.

What can we learn from the Wright decision? Certainly, what you post on social media is fair game when it comes to legal discovery. Don’t expect the courts to bail you out based on a privilege or Fifth Amendment rights when you waive that privilege by sharing your post with thousands of people.

If you have been injured in a car crash, rest assured that The Grife Law Firm will engage in rigorous discovery on your behalf. We will look into every aspect of the at-fault driver’s life to uncover all evidence of negligence. Call us now at 561-998-0770 for a free consultation.