Maybe you love Tik Tok. Maybe you’re an Instagram sensation. Maybe you spend a lot of your time on Snapchat or posting pictures of yourself and your family on Facebook. Posting pictures of ourselves and our families along with information about our lives has become part of our daily social interactions.
And there’s nothing wrong with that.
You are a litigant in a personal injury case.
Then you need to think carefully before you post anything on social media.
Social Media is Evidence. And Evidence is Discoverable.
Personal injury cases can be difficult to prove and to litigate. Quite often they are highly emotional as injured victims sue to recover damages (money) for not only physical, but often mental and emotional injuries arising out of an accident or incident. Plaintiffs may seek to recover for emotional damages such as: humiliation, depression, anxiety, fear, or sleeplessness.
Not only are personal injury cases stressful and emotional for the plaintiff because of the trauma from the accident itself, during litigation the emotional aspect of these cases is intensified. While the plaintiff is trying to prove his damages, the defendant is busy seeking evidence to minimize them or to cast doubt on the victim’s credibility. In other words, the defendant is trying to prove that the plaintiff is either exaggerating or lying. That causes a lot of tension.
And, despite what you may have seen on t.v., there are no “surprises” at trial in civil cases.
Our civil discovery rules operate to get all the evidence into the open long before trial. Discovery allows each side of a litigation to “discover” exactly who the witnesses for the other side will be, what they will say, and what physical evidence (e.g., photographs, letters, recordings, statements etc.) the opposing party intends to present at trial. Discovery rules prevent either side from playing games by hiding the evidence and then springing it on the other side at trial (or they severely punish a party who does).
In today’s society, seeking to discover information from a plaintiff’s social media posts during litigation is so commonplace that it is expected. What that means, then, is that virtually everything posted to a social media site is discoverable. Some courts have even held that social media accounts that are set to “private” may be subject to discovery.
Of course, that isn’t to say that there are no rules about what is and what is not discoverable. There are. And debates over discovery requests in civil cases are often heated and costly.
But generally speaking, as long as the information sought is “relevant” to the issues in the case or can be said to be “reasonably calculated to lead to admissible evidence,” it will be discoverable. Given the breadth of discoverable material, almost anything posted on social media may be discoverable by the other side.
Think Before You Post.
Because the defendant and his litigation team (his attorneys and insurers) are looking for evidence to discredit any and all claims of injury, a plaintiff who posts pictures or comments on social media during litigation runs the risk of having his/her entire social media site produced to the other side.
Not only can that be embarrassing, it can have a negative effect on your case. For example, if you are claiming emotional injuries like depression, but you post pictures of yourself singing silly songs or out socializing with friends, that will be used against you.
Likewise, if you are claiming severe physical injuries yet you post pictures of yourself playing with your children or engaging in active sports, that is going to damage your case. Plus, anything you say on your social media account may be used against you to discredit your veracity. (In other words, anything you say can be twisted to prove you are lying about your injuries or what happened, etc.).
So, be extremely careful if you are a litigant in a personal injury case. Consult with counsel about your case and be mindful of the fact that your social media will be a target of discovery during the litigation.
Personal Injury Attorneys in Cumming, Georgia.
The personal injury attorneys at the Law Offices of Mark Weinstein, P.C., are here to help you. We serve clients in Atlanta, and in a number of counties throughout Georgia, including: Clayton County, Cobb County, Dekalb County, Douglas County, Fulton County, and Paulding County, among others. To find out how we can help you, call us at: 770-888-7707. Or contact us here.