Facebook Privacy and Personal Injury Discovery

Advising clients on how to handle their social media before and after filing a case is a minefield. The general consensus is that clients should not post anything about their case, and that posts and comments, even if not public, should be kept to a minimum.

A recent decision from New York Court of Appeal, the state's highest court, makes the above consensus even stronger. The court clarified that Facebook posts, if relevant to a case, cannot be withheld from discovery on privacy grounds. Although the court clearly expressed that individuals do have a privacy interest in what they post to Facebook, that interest, like the doctor-patient privilege, can be waived when it is relevant to the claims being made.

Personal Injury Discovery

In the New York injury case, the plaintiff is asserting that her injury caused them to suffer a traumatic brain injury, which has resulted in cognitive problems. Evidence of these problems include her inability to construct coherent sentences and her decreased activity level. The plaintiff had planned on using prior Facebook posts to show the active lifestyle she led pre-injury. However, to rebut the evidence that plaintiff's life and activity level drastically changed after the accident, the defense sought to gain access to the post injury Facebook posts to compare with the pre-injury posts. Plaintiff opposed this disclosure on privacy grounds.

Unfortunately for the plaintiff, the court ruled that since the plaintiff put their Facebook activity in issue in the case in the first place, it would only seem right to provide the defense with access to the post accident Facebook posts as well. Interestingly, the court limited the access to only the photos as well as the timestamps and number of characters contained in any given post. Additionally, posts that contained nudity or romantic encounters would not have to be disclosed.

Social Media Evidence

When it comes to showing an individual's losses or damages, using social media can be rather effective, particularly for showing a plaintiff's pre-loss, pre-injury, lifestyle. The type of evidence, particularly in our hyper connected world, can really resonate with a jury. However, using it comes with certain risks, particularly if your client actively expresses unpopular opinions, or posts unflattering selfies, or happens to post something that completely undercuts the entire case.

Related Resources:

• Corporate eDiscovery Is Complicated by Texting, Mobile, and Social Media (FindLaw's Technologist)
• Social Media Fishing Expedition Denied in NY Court (FindLaw's Technologist)
• How Social Media Is Changing the Way We Litigate (FindLaw's Strategist)