Marking posts as private may not be enough protection against having your Facebook data included in discovery in a lawsuit

How Private are “Private” Facebook Posts?

If you’ve been involved in a personal injury accident, Facebook and other social media sites may seem like a natural outlet for sharing information about your injuries with friends, family, and other well-wishers.

However, if you’re involved in any kind of personal injury claim or lawsuit, you need to be careful about what you share on Facebook. Attorneys representing the at-fault party, as well as insurance adjusters from their insurance company, will look you up on Facebook and other social media sites, hoping to find any information relevant to your case. This may include:

  • Status updates about your injuries and symptoms
  • Recent photos
  • Comments from friends
  • Check-ins at local businesses

If they find anything that seems to contradict the information you’ve provided in your personal injury claim, they may be able to use it to argue that you are exaggerating or fabricating your pain and other symptoms, or that your injury is not as limiting to your daily life as you claim. For example, if they find a photo of you out on the golf course, they may use it to argue that your back injury must not be too bad. What the photo doesn’t show, of course, is how much pain you were in while you golfed or that you had to quit after just a few holes.

Many people have tried to protect themselves from this kind of situation by marking Facebook posts as “private,” the reasoning being that private posts will be inaccessible to defense attorneys, insurance adjusters, and investigators.

However, this is not necessarily the case, as a recent ruling from the New York Court of Appeals shows.

The case involved a plaintiff who was hurt falling from a horse owned by the defendant. The plaintiff said her injuries had made her reclusive and made it difficult to use a computer or compose coherent messages. The defense asked for authorization to obtain access to the plaintiff’s entire Facebook account as part of discovery for the case, the rationalization being that the plaintiff’s written posts would be relevant to the scope of the plaintiff’s injuries and her credibility. The plaintiff opposed to the motion, arguing that, based on the public portion of her Facebook account, there was no reason to assume the private portion would contradict her claims or deposition testimony. The trial court ordered the plaintiff to provide photos plus access to her messages, while the appeals court considered this a fishing trip and said she only had to provide the photos she intended to use at trial.

When the appeal court’s decision was appealed, the court came to a different conclusion. They pointed out that discovery should be based on what is material and necessary to the case, not on what is easily accessible. Allowing the user’s privacy settings to govern the scope of discovery for social media materials is therefore the wrong approach. Just as medical records are normally private but can be subject to discovery in a personal injury case, so should “private” Facebook posts be.

So how should you handle social media posting during your personal injury lawsuit?

The safest policy is simply to keep all discussion of your accident as well as your injuries and symptoms off of social media entirely. Instead, discuss the matter in detail with an experienced personal injury attorney who can help you seek full and fair compensation for your injuries and suffering. Contact us at 800-333-0000 to get started.

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