Social Media: To Post or Not to Post?

Litigants need to be aware that material posted on any Social Media site is not truly private. If you are involved in a lawsuit you need to be careful not to post anything on any Social Media website which could possibly have an adverse effect on your pending litigation.

If you were injured and are making a claim for damages insurance companies and defense lawyers have been demanding access to all of your Social Media site postings. If the postings are not private then, obviously, they can access and see them without asking for your assistance. However, if the postings were ”private” can they get to see them anyway? The law on this issue is still evolving and judges are deciding these issues on a case-by-case basis.

The law in New York requires parties to a lawsuit to disclose all matters that are material and necessary in the prosecution or defense of the lawsuit. If the matter is in Federal Court, The Federal Rules of Civil Procedure also limit discoverable information material that is relevant to a party’s claim or defense.

In a recent New York state court decision in a personal injury action, the plaintiff had claimed that she had permanent injuries and was largely confined to her house and bed. However, her publicly accessible Facebook page showed her “smiling happily in a photograph outside the confines of her home” after the date of the accident. Given these facts, the Court applied New York’s liberal disclosure standard and allowed discovery of the plaintiff’s private postings, finding them relevant on the issue of the extent of plaintiff’s injuries.

However, parties in litigation are not entitled to complete, full access to a user’s account without establishing relevance of a search. In another New York case, the Appellate Division held that the defendant was not entitled to access the plaintiff’s private Facebook posting, since the defendant “failed to establish a factual predicate with respect to the relevancy of the evidence” The defendant “essentially sought permission to conduct “a fishing expedition” into plaintiff’s Facebook account based on the mere hope of finding relevant evidence.

Facebook, MySpace, X, YouTube, Instagram, WhatsApp, LinkedIn. Persons who bring lawsuits, plaintiffs, need to take heed about what they post on such sites, not only regarding information about their pending litigation, but also any information that may represent their personal lives and character. Privacy settings may not be as private as plaintiffs would hope or believe.

In my practice I have seen plaintiff’s post photos of them while wildly dancing in a discotheque and another who posted photos as an expert skier. Since both of these plaintiffs were claiming to have been seriously injured in accidents their postings seriously reduced the value of their cases.

When plaintiffs are filing lawsuits and asking to be compensated for their injuries, the juries, judges and opposing lawyers all expect them to be scrupulously honest in their medical histories and complaints. If a plaintiff is found to have lied or exaggerated their testimony concerning the injuries suffered, they will be severely punished and any awards drastically reduced.

General Rule to Follow: Always tell the truth

If you have to think about whether a Social Media posting may possibly affect your claim. DON’T POST IT!