The Effect Of Social Media On Personal Injury Litigation

            In the year 2020, use of social media services to communicate with friends and families has replaced letter writing and telephone calls as a primary vehicle of staying connected.  Use of the social media services is not without its drawbacks.  False identity representation in dating services and as a means to steal is rampant.  Social media users also don’t always realize the impact postings can have on their employment when employers use sophisticated background checks that reveal public postings by an applicant.  However, there is another problem that few appreciate other than personal injury lawyers.  When you bring a lawsuit to recover damages for personal injuries you have suffered, you waive your right to privacy in many ways, including opening up your social media postings to scrutiny by insurance companies and their lawyers who are defending against personal injury claims. 

            So how exactly would your social media postings become fair game and discoverable in a lawsuit?  Well, here in New York, if an injury victim posts any written content or photographs or movies on social media regarding their accident or injuries, it is discoverable and usable by the defense.  All that defense counsel has to do is establish a foundation for requesting your social media account information/data.  The simplest way for this to be done is for defense counsel to ask the injury victim/plaintiff at their pre-trial deposition (when sworn testimony is provided) whether they have posted anything at all about the accident or their injuries.  If the answer is yes, the door has been opened to discovering the social media content.  In one recent matter that I handled, my client was rear-ended by another vehicle and sustained a spine injury that necessitated surgery.  Before she had surgery, she continued, with her orthopedist’s knowledge and urging, to remain physically active.  This included hiking up mountains and trails.  Defense counsel hired an investigation firm that specializes in looking for posted social media content and found numerous photographs of my client on a mountain top that gave the impression she was healthy.  Defense counsel tried to use this information to damage my client’s case.  We were able to avoid that from happening, but that is not always what happens.

            Most people don’t immediately think about starting a lawsuit after a car accident, but they may post information or pictures on their social media account to share with their friends and family.  When they get around to hiring a lawyer to represent them, they may have posted a substantial amount of information and pictures/movies.  Sometimes, the data is innocuous and of little consequence to the injury claim.  Other times, the postings may be devastating to the injury claim.  Obviously, the safer course is to never post anything on social media about an accident or injury that you or a family member was involved in.  This is the only way to ensure that your information, even if posted privately as opposed to the general public, remains private and undiscoverable by defense counsel.