201601.29
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Social Media and Personal Injury Law

We tell our kids to be careful when posting ANYTHING on social media as nothing can ever truly be erased, and we have all heard horror stories of colleges and potential employers conducting social media background checks that end with revoked offers. These same digital guidelines and warnings hold true for those involved in a personal injury matter, and we remind our clients of this all the time. Think this through. If you are claiming you were injured in a truck accident and have a broken arm, yet you post a photo of yourself with no evidence of this injury, you can rest assured that the insurance company for the defendant will find this photo and may use it against you. If a friend of yours tags a photo of you with “hey you were tearing up the dance floor last night”, this is not a good thing for a person who claims they can barely walk because of their bad back. When you bring a law suit because you were injured you are putting your medical condition at issue. That means any records relating to your health and wellbeing are potentially discoverable by the defense. This includes not only medical records but more and more we are seeing subpoenas for a client’s Facebook or Instagram account. With any personal injury case, honesty is the best policy. One should never claim an injury that one doesn’t have. Your posts should simply reflect the truth. But as we all know the truth can be twisted and misconstrued. If you are smiling in a photo taken on your birthday, surrounded by friends, and it shows up on Facebook an insurance company may use it to try to argue that you are happy and leading a perfectly normal life.

In a slip-and-fall case from 2015 (Nucci vs. Target Corp.), the defense presented Facebook photos that suggested that the plaintiff’s injury was suspect based on the fact the plaintiff looked incredibly active both before and after the injury. The court felt that photos posted on a social network page are not privileged nor projected by any right of privacy settings and allowed them to come into evidence.

Like it or not, social media is here to stay – insurance companies no longer need to hire private investigators to look behind the curtain – they simply go online. Here are some very basic but helpful rules of thumb regarding social media posting when involved in a lawsuit.

  • Don’t post at all. Probably the best advice is to simply go silent for a while until your case is resolved.
  • Don’t post about the facts surrounding your case or your injury. Leave any reference of an injury or the lawsuit off of social media. This is not your soap box to clear the air about what happened, you will not be helping your case.
  • Make your page private. Set all social media accounts to “Private.”
  • Avoid “friend requests” from people you don’t know. Do not accept a request from anyone you don’t know personally during your case. We have seen cases where information was gathered by the defense because our client accepted a friend request from a complete stranger who ends up being an investigator for the other side. If you agree to accept a friend request you are giving that person the right to snoop around your private life and photos.
  • Google yourself. See what your digital profile looks like to the outside world. If you find an old account that you had opened, perhaps remove it or make it private.

Another thing to think about is that if your case actually goes to trial the jurors themselves may look you up to try to find information about you. Jurors are told by the judge that they are not to use the internet to try and find any information about the case. However, it is impossible to monitor this and we all know that some people will get online and check you out. If you there are posts out there that make you look bad, even if it has nothing to do with an issue in your case, the juror may be offended or just not like you and that can hurt you in your case.