ANYTHING you do on the ‘net will be used against you in your injury case. If you claim to have been disabled as the result of a crash with an unsafe truck driver, the insurance defense lawyer will likely have all of your computer social network sites investigated and your cell and texting service records subpoenaed. In yesterday’s post we looked at the pre-trial strategies used against injured crash victims. The process of discovery is about trying to find information that your opponent has and that helps your case. So, from the defense attorney’s perspective, an injured plaintiff might have very useful information on their social media sites: statements about just how much pain they are in or how their recovery process is going; statements about what actually happened during the accident; even images that show the plaintiff’s injuries don’t actually prevent certain activities. Sometimes those images and statements might even show how the plaintiff played a role in bringing about those injuries—for example, pictures of a plaintiff drinking alcohol at a party just before a car accident could do serious damage to a plaintiff’s personal injury claim in court. Likewise, a YouTube video of the plaintiff doing something physically inconsistent with their disability claim.
Even considering the potential usefulness of the information, what allows defense attorneys to discover this type of information? First, if your social media accounts aren’t set to private, then it makes sense that anyone—including defense counsel—could simply search for your name and pull up all sorts of information about you. This is yet another good reason to keep those accounts private. If your account is private, then the opposing side will have to at least jump through some hoops to get access to your information, which gives the plaintiff an opportunity to contest their right to see that information and protect their privacy. But, often, so long as the opposing side can show that their request is likely to lead to relevant information, then they can get access to a significant amount of social media information. Plaintiffs who go online and take down posts, pictures, or information also run the risk of being sanctioned for destroying evidence or interfering with discovery. Yet these same photographs, video clips and comments could prove to be prejudicial evidence at the innocent victim’s personal injury trial.
Discovery has always been an invasive process, particularly so in personal injury cases that involve individual people and their lives. The sheer amount of information that each of us produces now in the age of Facebook, Twitter, digital pictures and instant updating just makes it all that more invasive. Make sure that you know who has access to what you post, and once you are in an accident, know that your media may be subject to subpoena (a court Order requiring production, copies, records, bills, etc.). These requests for electronic records are becoming commonplace. Doug Landau of the Herndon Law firm ABRAMS LANDAU, Ltd., counseled clients, "Loose lips sink ships." In other words, do not discuss the case other than to truthfully tell nosey neighbors and others, "We are preparing the case for trial." In this age of computer media access and invasive pre-trial discovery, Landau also hopes that clients will not post anything they will regret later, such as inconsistent pictures, video, commentary or activities.