Did you know that your posts, photos, or even “check-ins” can be used against you in a personal injury lawsuit? In September 2022, Facebook had roughly 1.98 billion daily active users. That means that almost 25% of the world’s population are actively using Facebook every day. There are over 95 million photos being uploaded to Instagram every day. There is no doubt that social media has become a prevailing force within our everyday lives.
Although you may have your social media sites set to private, a growing number of courts are requiring the disclosure and production of information in response to discovery requests. Social media information can be relevant in nearly any type of lawsuit—from criminal to civil cases involving personal injuries or employment disputes. It is important to understand how your everyday posts on social media can affect current, or even future personal injury lawsuits you may be involved in.
HOW CAN MY SOCIAL MEDIA POSTS BECOME PART OF A PERSONAL INJURY LAWSUIT?
Any publicly available information may be used against you in a personal injury lawsuit. If your social media is set to public, any social media activity may be viewed, captured, and used against you in a personal injury lawsuit. Even if you have your social media set to private, you may be required to produce a copy of it as part of a personal injury lawsuit.
During the course of nearly every type of lawsuit, the parties are entitled to engage in “discovery.” Discovery typically involves the exchanging of written requests from one party to another for the disclosure and production of information and/or documents. This means that someone in your personal injury lawsuit can ask you to describe or produce a copy of all your social media posts, photos, videos, comments, likes, check-ins, or any other applicable information—as long as it is relevant to your lawsuit. If they make this request, a judge may require you to produce it as part of your lawsuit.
WHY WOULD ANY OF MY SOCIAL MEDIA POSTS BE RELEVANT TO A PERSONAL INJURY LAWSUIT?
As social media is becoming more and more prevalent, adverse lawyers are looking to social media to find “dirt” on opposing parties. It is possible that the opposing attorney will look to your social media to see if you have posted any relevant information about your personal injury lawsuit. Any social media posts you make about your injuries, the opposing parties, or facts surrounding the lawsuit may be used in the lawsuit against you
For example, if you were injured in a car accident caused by a negligent truck driver, you would likely have the right to seek compensation from the negligent driver, his employer, and the applicable insurance companies. This is typically called a personal injury claim. If you suffered from any bodily injuries—such as a broken leg, sore back, or concussion, you and your personal injury will likely work together to seek compensation for your medical bills and compensation for any pain or suffering as a result of your injuries.
In this situation, the opposing attorney or insurance adjuster is likely to investigate your social media history to see if you have posted anything since the accident that would repute your injuries. If you have recently posted a photo from a hiking trip with friends, the opposing attorney or insurance adjuster is likely to use those photos against you during negotiations or even a jury trial.
WHAT CAN I DO TO PREVENT MY SOCIAL MEDIA BEING USED AGAINST ME?
As the attorneys at Taylor, Foster, Mallett, Downs, Ramsey & Russell, P.C. will tell you, the best advice for using social media during a personal injury lawsuit—or when one is anticipated—is to not use social media at all. If you are involved in a personal injury lawsuit, or anticipate being a part of one, you should refrain from posting any information that may be relevant to your personal injury lawsuit. This includes any photos, posts, or comments that you don’t think are relevant to your personal injury lawsuit.
Before you delete or modify any social media information, it is very important that you speak with a qualified personal injury lawyer before making any changes. Nearly every state has rules against “spoliation of evidence.” That means that if you intentionally delete, change, or modify any relevant documents, social media posts, photos, comments, videos, etc. that may be relevant to your lawsuit, you may be subject to penalties in your lawsuit.
If you intend to use social media during a personal injury lawsuit, you should follow these tips:
- Keep your social media private. However, it is important to remember that you may be required to produce any social media information even if it is set to private.
- Don’t post anything related to your personal injury lawsuit. Do not post anything related to your personal injury lawsuit; whether it is photos of your car accident or injuries and ask your friends and relatives to do the same.
- Anything about you on the internet may be used against you in your personal injury lawsuit. If you post photos or videos of you exercising, playing sports, or even doing work around the yard, insurance companies may try to use them against you in a lawsuit.
- Never comment about your lawsuit. Refrain from making any comments on social media that could be relevant to your lawsuit. Even if your social media is set to private, those comments are possible to be seen by others.
- Don’t use private messages or direct messages to discuss your case. Nothing you share online is 100% private. If you use a third-party company, such as social media sites, to communicate about your case, those messages may be discoverable by the opposing parties.
- Speak to a qualified personal injury lawyer for specific advice. If you are unsure about something related to your social media, ask a qualified personal injury lawyer for advice.
¹ Meta Platforms, Inc.’s Investor earnings report for 3Q 2022 (https://s21.q4cdn.com/399680738/files/doc_financials/2022/q3/Meta-09.30.2022-Exhibit-99.1-FINAL.pdf)
² Brandwatch’s 126 Amazing Social Media Statistics and Facts (https://www.brandwatch.com/blog/amazing-social-media-statistics-and-facts/)
