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Wednesday, September 27, 2017

Are Social Media Profiles Discoverable in Personal Injury Litigation?

As our technology expands, so do the legal liabilities and consequences that accompany it.  Fifteen years ago the only real prevalent "social media" was AOL Instant Messenger better known as AIM.  Today, there are dozens of social media platforms including Facebook, WhatsApp, QQ, WeChat, QZone, Tumblr, Instagram, LinkedIn, Twitter, Google+, Baidu Tieba, Skype, Viber, Sina Weibo, Line, Snapchat,Vkontakte, Pinterest, Telegram, Reddit, Taringa, Foursquare, Renren, Tagged, Badoo, MySpace, StumbleUpon, The Dots, Kiwibox, Skyrock, Delicious, Snapfish, Reverbnation, Flixster, Care2, Cafemom, ravelry, NextDoor, Wayn, CellUFun, Vine, Classmates, MyHeritage, Viadeo, Xing, Xanga, LiveJournal, Friendster, and YouTube - just to name a few.

While there are many great aspects to the ability to connect to so many people both known and unknown in the world, as with all technology, there are important legal ramifications to consider.  Specifically, one question that is becoming more and more prevalent is who has the right to access a person's social media profiles.  Many people believe that the answer to that question is no one because everyone's social media profiles are supposed to be private.  Unfortunately, that is not the case. 

There has been an interesting and potentially case altering recent trend in personal injury litigation.  More and more defense lawyers are making a standard habit to request that the plaintiff produce his or her social media profiles, pictures, postings, and the like.  While the Court often will narrow down the typically overreaching requests, it has become more and more commonplace for the Court to allow the defendant to review a good amount of the plaintiff's social media postings.  The most common cases where these requests are made are personal injury matters, workers' compensation and health matters, and property damage claims.  The theory being that there may be contradictory evidence to a person's claims found on photographs and other postings by the plaintiff or his or her friends.

For example, let's say a plaintiff was rear ended by a defendant and claimed that because of the accident, he was in constant pain and needed to lie down for the majority of the day.  Let's say that this plaintiff's friend recently posted pictures of a get together over the weekend which showed the plaintiff tossing around the football with his friends.  This evidence would contradict the plaintiff's claims that he is in constant pain.  Another example would be a runner who claims that her legs were injured from a fall down a negligently maintained staircase.  If there is a Facebook photo of her running a marathon after the accident, that could significantly impact the damages in her case.

In many cases, a personal injury plaintiff might publicly post about an accident that they were involved in.  Such posts can end up being used as evidence in any pending litigation.  In recent cases, social media posts showing "injured" plaintiffs dancing, lifting weights, moving, carrying heavy items, playing sports, or doing anything else inconsistent with his or her supposed injury have caused irreparable damage to their case or claim.

A personal injury plaintiff may think that they can just deactivate their account and there will be no social media profile to produce.  Not so fast.  The Courts have held that the destruction of social media accounts after making a personal injury claim can constitute spoliation of evidence.  For example, in the matter of Gatto v. United Airlines, Inc., a personal injury plaintiff deactivated his Facebook account after the Court ordered production of the Facebook records.  The Court in that case found that the Plaintiff had spoliated this evidence and permitted a negative inference at the time of trial.  Such negative inferences are very difficult to recover from.

Rules governing civil litigation tend to include very broad parameters for discovery.  Therefore, anything reasonably calculated to lead to evidence that may be admissible is likely to have to be disclosed.  This standard allows attorneys to request materials that are far beyond that which might be considered relevant at trial. 

However, none of this is to say that everything on your social media profile will be fair game in litigation.  If a personal injury plaintiff has privacy settings in place and there is nothing that the public can see showing anything relevant to the case, the defendant is unlikely to get automatic access.  However, if there is something that is visible on the social media page and the defendant or his or her attorney can view it which is clearly relevant to the case, they will likely be given the right to access the plaintiff's social media accounts.

Whether or not you are a fan of social media, there is no denying it is not going away in the foreseeable future.  No heavy user of AIM (myself included) could have predicted what social media has evolved into.  But with the freedom allowed in this new technology comes an awesome responsibility to carefully monitor what is posted.  As we are seeing today, social media can play a very big role in personal injury litigation.

As always, if you have any questions about this or any personal injury matter, please do not hesitate to contact the Law Offices of Samuel S. Reidy.


by Samuel S. Reidy, Esq.

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