The Impact Of Social Media Evidence In Personal Injury Cases

We now live in the era of Facebook, Twitter, Instagram, and numerous  forms of social media pathways that have become windows into our daily lives and activities, and in some cases, into our privacy. By the stroke of a keyboard or click of a mouse we expose information about our personal lives, activities, family and friends, thoughts, politics, and ourselves, without hesitation. While you are innocently clicking away on that keyboard and posting snapshots of your activities, you may not be thinking that this information holds any significant value to persons or companies you don' know.  It's just harmless banter; but, if you are the victim of an accident who is making a personal injury claim, you can be sure that this information will be of great value to the insurance company, its investigators, and its defense attorneys who are working hard to discredit your claims and undermine your case. They are watching and trolling your posts too.

All too often people jeopardize their own personal injury cases by failing to realize that the information they post on social media can provide opposing attorneys and insurance companies with an arsenal of evidence that can be used against them. For instance, an attorney working for the person or business you have sued for your injuries may claim that a picture of you smiling with friends or family during an evening out or from your vacation, is evidence  that you are not really suffering from the accident you claim disrupted your life, but instead appear to be having the time of your life. "Look! He's having a good time... he looks like he is having fun. Does not look to be in pain to me."

At this point, you might be telling yourself that simply tweaking your social media privacy settings ought to do the trick and shield your content from those who seek to use it against you.  As we know from the events of the past year particularly with Facebook and Twitter, this is far from the truth. Be on the defensive. Take the view that anybody who wants to, can see what you are up to at any given time.

What happens when opposing counsel serves you or your attorney with a discovery request seeking access to all of your private social media accounts? Does the opposition now have a right to conduct a fishing expedition into your accounts in the hope of finding evidence to impeach your claims or make them look suspicious, even when they are harmless? While this area of law is fairly new and evolving, courts in other jurisdictions have provided guidance on the scope of discovery regarding social media.

In February 2018, a Pennsylvania trial court in a case, Kelter v. Flanagan, held that the plaintiff in a personal injury action had to provide the defendant with the login information to view the photographs in her private Instagram account. The court held that the photographs were discoverable and relevant to the question of the extent of the plaintiff's injuries and noted that there is no expectation of privacy on social media. In March 2018, the Superior Court of Pennsylvania in Commonwealth v. Mangel - a case of first impression in Pennsylvania - held that Facebook posts and messages are not admissible at trial without some evidence of who actually wrote them.

The general prevailing view on the discoverability of social media has been summarized by the U.S. District Court for the Eastern District of Michigan in Tompkins v. Detroit Metropolitan Airport as follows:

[M]aterial posted on a "private" Facebook page, that is accessible to a selected group of recipients, but not available for viewing the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with [Fed. R. Civ. P. 26(b)] there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in plaintiff's Facebook account.

With courts increasingly acknowledging the function and relevance of social media content, what can be done to ensure that a seemingly innocent post doesn't endanger your personal injury claim? If you are thinking the answer is to simply delete your posts, or entire accounts, you are mistaken. Deleting information can often have far more damaging effects than the actual content of a post because it makes it appear that you are hiding something.

Failure to preserve potentially relevant social media posts could be considered what is known in the law as "spoliation" of evidence. Spoliation is the destruction, mutilation or alteration of evidence by a party to an action. The theory is that one does not ordinarily withhold or destroy information that is beneficial to his or her case. As such, any destroyed or altered evidence entitles the judge or jury to infer that the evidence would have been bad for the victim or party who destroyed it. This inference tends to be much more damaging to a personal injury case than the deleted or altered evidence itself. Moreover a party who fails to preserve electronically stored information may be subject to potential sanctions. It is also important to note that one's duty to preserve evidence kicks in the moment litigation is reasonably anticipated, which almost always predates the filing of a law suit.

What are some steps that a personal injury victim can take in order to avoid jeopardizing their case through social media?

1. Enable and/or heighten all your privacy settings;
2. Do not to accept requests from people you do not personally know;
3. Be ultra conservative regarding the content you post on social media after your accident;
4. Do not post photographs and/or video evidence of your activities, including "checking in" to places;
5. Never post remarks about the status of your claim or case, about the parties, the attorneys, or your state of mind. Your safest bet would be to terminate all social media activity until the conclusion of your case, without deleting or altering content that has already been posted;
6. Do not delete and/or alter any of the content you have already posted on social media; and,
7. Do not delete you social media accounts.

If you or a loved one has been harmed in an accident, we invite you to set up a free consultation.  These consultations are designed to help us establish the facts of your claim, evaluate your potential for compensation and develop the best strategy to help you. Your free consultation is also an opportunity for you to ask us any questions you may have about your legal rights and figure out if we're the right fit for you. And best of all, if you decide to hire us to represent you, you only have to pay if we win your case. That's because the Law Offices of Stuart L. Plotnick, LLC in Rockville, Maryland, works on a contingency fee basis. There are no hidden fees, no surprises. Contact us today and find out how we can help you.