Social Media in the Personal Injury Discovery Process
Few recent technological advancements have affected the legal process the way that social media has. Social media is often a gold mine of information on the parties to a lawsuit.
Though the issues apply across the board in all litigation, the focus here will be primarily on personal injury claims. More specifically, it will apply to the discovery process in a personal injury case.
To begin, let‘s start with those folks, surprisingly large in numbers that have yet to recognize the lack of privacy on social media. Amazingly, there are many in the midst of all varieties of litigation that have no privacy settings on their social media accounts. In other words, the world is free to browse around on their account. There is little to be said here since the social media histories may be readily obtainable with or without court involvement.
However, even for those who have set their security settings at their highest, there are still very real risks that those posts will end up in discovery, and if possible, used against them in court. For those that have no privacy settings, it is often possible to get all that is needed or available through informal discovery (i.e. just looking around). For those who think that their posts are protected from prying eyes due to their high privacy settings, they need to think again.
Simply put, for litigation purposes, these posts are public no matter what the privacy settings. There simply is no Facebook-client privilege. Worse yet, the attorney-client privilege can be waived by posting information about discussions with one‘s attorney. No kidding, it happens! So even though the posts are private (i.e. shared only with your closets 1000 friends), the information may be obtained through the discovery process during litigation. This means that the court can order you to turn over this information.
The Courts have taken various positions on the discoverability of this information. There have been cases where judges have simply required parties to turn over their passwords to their accounts (including Facebook) to the other side. This is the most extreme position since it has the potential of revealing very embarrassing but irrelevant information to the other side.
Other courts have required a party to provide archives from their social media accounts. Though this might seem somewhat less invasive since passwords are not turned over, it is no less intrusive and no less prone to abuse by hostile opposition parties.
Other more thoughtful judges have instead requested the information for in camera review. This means that the judge review the information in order to determine the scope of the discoverability limiting the information to that which is relevant to the case. This same objective might be achieved through the appointment of a Special Master that works to manage and supervise the discovery process.
There are numerous variations on these approaches. Moreover, discovery in the age of social media will continues to evolve quite rapidly. However, there is one thing that should be kept in mind and that is that no matter how the courts evolve on this issue, your social media to a large degree will be discoverable.
The rule on discovery is “relevance” not admissibility. Relevance allows discovery of anything that might lead to admissible evidence and this is a very broad swath across your social media universe. The evidence revealed on social media need not be admissible itself. It just has to be relevant and relevance is a fairly broad concept. Moreover, the rules of discovery dictate that courts err on the side of discoverability.
In a nutshell, whatever you post can and will be used against you! So think before you post. Once posted, it is too late. Social media is permanent. And attempts to delete or hide it give rise to all kinds of other problems (think sanctions, adverse inferences, contempt…).
If you find yourself in this situation and you have a personal injury claim, it is important to speak with an experienced personal injury attorney before taking any rash and potentially irreversibly harmful action on your own.
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