It is hard to believe that not long ago we lived in a world where social media did not exist. It was a time when we did not particularly want our friends, associates, or foes to know what we ate for breakfast or where we vacationed. Well, times have certainly changed.
Now we are overwhelmed by social media platforms like Facebook, Twitter, Instagram, and Tik Tok to name a few. As a result of social media being so prevalent in the lives of so many, a persons posts have become a frequent request for review in personal injury or civil cases and are even sometimes admitted for a jury to examine.
Imagine being asked in a deposition whether your injury is legitimate because you posted a photo where you were out with friends. And although the request for a clients social media content has become more frequent, the question still remains; is it actually allowed, and can it be used in a trial? Below are some important facts about how social media can or cannot be used in court.
Are your social media posts being requested in court? Get advice from the experienced lawyers at the Kryder Law Group.
This statement defines what discoverable means within civil cases. If the information being requested can lead to relevant information in the case, then it is discoverable. For example, if you filed a claim that you injured your back in a motor vehicle accident and you posted a picture a couple of days following the accident performing a back bend, then this picture is discoverable because it can lead to relevant information that can determine the extent of your claimed injury.
Is there a limit on how much of my social media can be allowed in court?
The court has had to address the question of whether there are limits on how much of a plaintiffs social media is discoverable. In most cases, the attorneys can work it out amongst themselves and agree to a time frame where the request will stop. For example, they may agree to requesting only pictures and content from the date of the accident to 3 months prior. However, reaching this agreement can also involve the courts.
In Scott v. USPS, Civil Action No. 15-712-BAJ-EWD (M.D. La. Dec. 27, 2016), the plaintiff filed a civil action and sought damages for personal injuries sustained in a motor vehicle accident. One defendant requested discovery of the plaintiffs social media specifically about her activities since the accident, which involve physical activity, and submitted with a motion a post-accident image of the plaintiff and her fiancé in ski attire on a mountain. The plaintiff resisted the discovery.
The parties resolved a portion of their dispute. However, the court was left to decide whether certain information about the plaintiffs social media accounts should be produced. The court found that the information requested was discoverable under Fed. R. Civ. P.26(f). Nonetheless, the court limited the plaintiffs social media postings, including images, from the date of the accident forward. The postings also needed to relate to her alleged physical injuries or reflect[ed] physical capabilities that are inconsistent with the injuries she allegedly sustained because, as drafted, the discovery request was overbroad.
What if my social media page is private, can it be used in a trial?
The private setting on social media can sometimes be used as the saving grace to conceal posts from the public. However, that setting may not protect your posts from discovery in court. In New York, a plaintiff brought a personal injury lawsuit against the manufacturer and distributor of a chair she claimed to be defective. The plaintiff fell from the chair and sustained injuries. She claimed that because of the injuries she was confined to her bed and home. The defendant requested the plaintiffs private postings on Facebook and Myspace. The request was opposed by her attorneys claiming it violated her privacy and it was irrelevant to the lawsuit. The court disagreed with the plaintiff stating that that since she put her physical condition at issue, she cannot hide material that may be relevant to the lawsuit.
What should I do if my social media is requested for a case?
In short, social media posts may be discoverable and reviewed by the alleged at-fault party if it may lead to relevant information for the case. However, the request must be reasonable. Even though your page is set to private, if the issue of your condition is placed as a claim, then a judge may order the disclosure of those photos.
It is the job of your attorney to ensure that the request is relevant and not burdensome. Therefore, it is important to have a knowledgeable attorney on your side that has the right knowledge and expertise to protect you throughout such a case. If you have questions about whether you should turn over your social media information, contact us at 312-223-1700 for a free consultation.