The growth of social media in America, and the world, has been exponential and continues to grow at astounding rates. Facebook has over one billion daily active users, an increase of 23% from the prior year, and 2 billion active users per month. Instagram now has 800 million users, having added 100 million users since April. In the United States, over 70% of people living are using social media (over 50% on Facebook). And why not? Who doesn’t want to share photo of a child or grandchild, share an event like a birthday, wedding or anniversary, post a summer vacation photo or maybe engage in a discussion about personal interests, current events, hobbies or politics?
Everyone Uses Social Media
The ubiquitous nature of social media requires people who are pursuing personal injury claims to exercise extreme caution. Anyone seeking monetary damages for their claimed personal injuries must be honest about their injuries and physical limitations, as there is nothing more important in a case than the claimant’s credibility.
Insurance adjusters, insurance defense attorneys and their legal staff also are on Facebook and other social media and have access to your photos and posts, just like anyone else. It should be expected that they will review your social media to check for postings which could have a negative impact on your credibility and claimed injuries and which might justify a low settlement offer or complete denial of your personal injury claim.
Courts have ruled that virtually anything posted on the internet is deemed to be in the public domain because the posting is available “to the public at large” with a “vast potential audience.” Moreno v. Hartford Sentinel (2009) 172 Cal.App.4th 1125, 1129-30.
How Your Post May Hurt You
The process of vetting personal injury claims through alternative and surreptitious sources is not new. Insurance and worker’s compensation defense firms have, for decades, retained private investigators to verify or disprove claimed injuries by conducting surveillance, videotaping and photographing claimants without prior notice to catch them in activities which would cast doubt on their credibility or the merits of their claims. Evidence of claimants engaging in a sports activity, going to a gym to work out or even lifting shopping bags routinely surface in litigation. Obviously, such evidence has a detrimental effect on the claimant’s allegations if the activity is inconsistent with their claimed injuries and physical limitations.
Imagine how a judge or jury evaluating a claim of severe emotional distress will react to photos of the claimant throwing a Frisbee on the beach, playing in a baseball game or dancing at a party. Even a seemingly innocuous post which reflects fun or frivolity could weaken an injured victim’s claim.
How Social Media Works with the Process of Discovery
Social media postings and photographs are discoverable in civil litigation, even if your account is private or you use an alias. This means that during litigation the insurance defense attorney can ask the plaintiff about social media posts, during the plaintiff’s deposition, or in written questions, called interrogatories.
While the issue of discovery of social media is relatively new, certain trends are emerging in appellate published decisions. Discovery requests which are overly broad as to scope and time, such as “all of your social media posts and photographs for the past year,” are subject to objection by the claimant’s attorney and a judge is likely to block such a broad request.
To the contrary, Courts have approved narrowly-tailored discovery which is limited as to time and scope and directed to the particular issue(s) being litigated. In an employment claim arising under the Family Medical Leave Act, a defendant was permitted to conduct discovery of social media which was closely connected to the employee’s employment and directly related to the plaintiff’s health and activities during the limited time when leave was requested. Wilkinson v. Dayton Transit Authority, 2014 U.S. Dist. LEXIS 64522, 9 (S.D. Ohio May 9, 2014).
Courts do not tolerate plaintiffs deleting their social media. In a Florida case, a plaintiff whose private Facebook account contained 1,285 photos prior to deposition, but only 1,249 photos two days after her deposition, was ordered to produce all photographs posted on her Facebook account from two years prior to the accident. Nucci v. Target Corporation (2015)162 So. 3d 146. In another case, a plaintiff who posted, but then deleted, material on Facebook was required to retrieve all deleted postings or produce her entire Facebook record. Jennings v. TD Bank, (Index No. 601947/2012 [Sup Ct, Nassau Co, Jul 8, 2013]).
While social media is a source of fun and collective enjoyment, in the context of personal injury claims, postings can create devastating harm to the value of the injured victim’s claim. Consistent with well-established principles of fair trials in American jurisprudence, a person suing for monetary injuries resulting from an accident or tortious conduct should appreciate that any post which tends to contradict an asserted claim is likely to make its way into that litigation.
The Bottom Line
Be very careful about what you post if you have made a personal injury claim. Don’t be the guy who claims to have suffered a physical injury and severe emotional distress, but then post photos of himself frolicking on the beach in Cabo Son Lucas. It has happened before.
The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. This blog is not intended to, and does not, create an attorney client relationship, an offer of employment or a guarantee of success for clients of The Drexler Law firm. No information or representation contained in this post should be construed as an offer of employment, guarantee of success or the creation of an attorney client relationship with The Drexler Law firm, nor as legal advice from The Drexler Law Firm or the individual author. No reader of this post should act, or refrain from acting, on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer in the corresponding jurisdiction.
There are time deadlines during which a case must be brought, according to your jurisdiction or state, and failing to abide by the jurisdictional statute of limitation rules can result in your case being time-barred.