There are several ways social media can undercut your personal injury claim. It seems like second nature to share your life with family and friends, but social media users who have a pending personal injury claim or lawsuit MUST exercise great caution. Sharing profile information, pictures, posts, videos, and comments on social media can undercut your claim by giving opposing counsel fodder that they can use against you.
Social media accounts provide defense attorneys with a valuable source of evidence to impeach your credibility, refute the cause of your injury, and undermine the amount of damages you claim to have suffered. You can avoid being in a compromised position by showing your lawyer your current social media profiles and seeking specific guidance. In the meantime, here are some do’s and don’ts.
PRIVATE vs. PUBLIC PROFILE. If you have public profiles, you can adjust these to “private” or “protected” in the “settings” area of your account. It is generally unwise to delete profiles in their entirety, as this can arouse suspicion of trying to hide something. In some cases, a court could also deem it “spoliation of evidence.”
Avoid accepting any new friend requests, and be wary of any new followers. These could be from the enemy camp, trying to get a closer look and monitor you.
You may wish to refrain from any social media use while your case is pending. Keep in mind, however, that searchers can find retweets, comments, hashtags, mentions, tags, etc. For this reason, you may also wish to ask your friends and family members to leave you alone on social media.
Keeping your information private is a good first step. It nevertheless does not mean that you can continue to post anything that you want to.
YOUR SOCIAL MEDIA POSTS MAY BE SUBJECT TO DISCOVERY REQUESTS OR COURT ORDERS. Even if your social media accounts enjoy private settings, an opposing lawyer can ask you to produce printouts of your social media activity in the discovery process. “Discovery” is the phase of a lawsuit where parties exchange information to build their respective cases.
Defendants have the right to seek as much information as they can about you. This includes information that is not public record.
A COURT CAN ORDER YOU TO SHOW SOCIAL MEDIA. Parties typically conduct discovery without court intervention. However, either party can petition the court if the other side does not want to produce information that the requesting party believes could lead to admissible evidence. For good cause shown, a court can order you to produce information from your social media accounts.
A court could also order you to reactivate a temporarily deactivated account. In some cases of deleted accounts, a subpoena can provide information from a provider’s servers or from a third party’s servers that store social media data. Each provider has a different policy concerning the length of time it retains data from deleted accounts.
EXAMPLES OF HOW SOCIAL MEDIA CAN HURT YOUR CASE. Even social media activity that you believe has no relationship to your case can harm you. The connections that a clever lawyer can make between your posts and your case are limitless. Nevertheless, here are a few specific ways that social media can not only undercut your personal injury claim but also sabotage it:
* Behavioral tendencies such as consuming alcohol, photos captured while driving, or a high-risk activity that could frame a view that the victim played a role in causing the collision.
* A personal injury victim claiming loss of enjoyment of life or pain and suffering regularly poses happily for pictures in various places.
* An personal injury victim claiming incapacitating injuries posts videos of dancing, hiking, bowling, playing softball, or some other physical activity.
* A victim pursuing lost wages or loss of earning capacity is complaining about their job, showing off a DIY home improvement project, or sharing links for online work-from-home websites.
* A victim posts financial resource-demanding plans for the near future (making a large purchase, taking a vacation, etc.).
* A victim whose settlement agreement contains a confidentiality provision announces the settlement on social media.
This is not an exhaustive list. Even posting something that you believe helps your case can invite a harmful response from a social media troll or other ill-willed social media user.
THE BOTTOM LINE. Your safest bet is to avoid social media altogether while your case is pending. You must continue to monitor your account to make sure that well-meaning friends and family do not mention you in their public or unprotected posts.
YOUR LAWYER CAN HELP YOU AVOID MISTAKES. We provide personalized advice to each client at every step in the personal injury process, including how social media can undercut your personal injury claim. We provide a free case consultation where we answer your questions and evaluate your case. To schedule this free consultation, call 253.858.5434.