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Can Private Facebook And Other Social Media Posts Be Ordered Open If I’m In A Personal Injury Claim or Lawsuit?

 

Social Media Posts in Litigation
Social Media Posts Can Come Back to Haunt

You have a personal injury case.  You’re claiming the injuries prevent you from enjoying many of your pre accident activities.

The insurance company asks you about those pictures of you running on the beach on vacation.  The picture of you dancing at a party.

Insurance companies monitor Facebook, MySpace and other social media sites looking for posts undermining claims that accidents have limited activities of the injured.

The best approach is never to post such material.  But what if the posts already exist and the insurance company seeks a court order disclosing privately posted material?

Can Insurance Companies get Court Orders to Obtain Personal Information Posted Privately on Facebook or Other Social Media?

A New York court answered the question holding that plaintiffs who place their physical condition in controversy in an injury claim can’t shield materials that may be relevant to the issue of the extent of injuries.  In the 2011 case of Romano v. Steelcase, Inc. the court ordered the injured person to grant insurance attorneys full access to all current and historical Facebook and MySpace pages including all deleted pages regardless of privacy settings.  This court and others point to the terms of service of social networking sites indicating that despite privacy options “all such sharing of information is done at your own risk”.

Other courts have ruled the other way.

When a mother brought suit after her 3-year-old son was hit by a vehicle outside a construction site, insurance attorneys asked for Facebook account postings, any and all postings, statuses, photos, “likes” or videos.  A trial court allowed the requests, but the Florida Court of Appeal overturned that decision, agreeing with the mother’s attorney who called it an overreaching fishing expedition.  In Root v. Balfour Beatty Construction, LLC the court said none of the requests pertained to the accident itself.

How Do Courts Decide When Requests for Facebook and Other Social Media Posts in Litigation Will be Allowed?

The analysis brings in discovery rules, including those in Massachusetts and New Hampshire, allowing relatively wide open disclosure of materials before trial.  Such rules allow requests for information that could lead to discovery of materials that may be admissible at trial.  This is a far broader standard than the relevance requirement at actual trial.

Courts must balance that wide open standard against the discovery rule prohibiting requests that are overbroad and unduly burdensome.

Can I Just Remove My Harmful Social Media Posts?

Those who delete already posted material go down a dangerous path.  Removing or deleting material on a hard drive or social media site has been held to be ‘spoliation’.  Where courts find spoliation, various penalties can be imposed from fines to preventing the party from presenting evidence essential to making their case.  Here’s more on spoliation.

The best option is never to post material to begin with that may in any way contradict claims being made in any type of lawsuit, whether it is a personal injury or any other type of claim.  Everyone needs a vacation.  But posting innocent selfies or other photos of yourself in relaxation mode will be misconstrued and blown out of proportion by insurance companies eager to crunch down the value of an accident case.

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Attorney Myers is a member of the American Trial Lawyers Association, Massachusetts Academy of Trial Lawyers, and New Hampshire Trial Lawyers Association. The Law Offices of Andrew D. Myers offer a broad range of legal services in personal injury cases in Massachusetts (MA) and New Hampshire (NH) areas.

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