You proceed to do what you have grown accustomed to: Facebook, Instagram, and Twitter. Posts, pictures and messages.
Is this a good idea?
Generally, clients should not be surprised to learn that if they publicly post about an accident, everything they do and say becomes discoverable to the other side.
Think the insurance companies and their defense attorneys are not watching? Think again. In fact, searching social media sites has become routine for every single personal injury claim that is filed.
Example: A person with a back injury posting photos of him or herself dancing, lifting, carrying or doing anything else inconsistent with that injury.
If someone’s claiming a back injury and their Facebook profile photo is a recent picture where they are lifting weights, or smiling happily on a trip somewhere, or drinking and having a good time with friends, no one should be surprised to learn that this can and will have a negative effect on the case.
Indeed, Facebook posts, pictures and messages may become evidence regardless of one’s privacy settings.
In Patterson v Turner Const. Co., 88 AD3d 617 (1st Dept 2011), the New York Appellate Division compared Facebook to a diary stating that “[t]he postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access, just as relevant matter from a personal diary is discoverable”.
While generally the private nature of the posts means that a judge will comb through the posts in what is known as an “in camera Inspection” and only turn over to the opposing party what is relevant to the case, what may be relevant can includes a VERY BROAD classification.
When a plaintiff is claiming psychological injuries like depression and anxiety as a result of the accident, recent pictures where they are smiling and laughing with friends may be relevant to the case.
Also, be aware that it’s not just what is on your page now, but also, things of the past that you have deleted can come back to haunt you.
In Romano v Steelcase Inc., 30 Misc 3d 426, 434 (Sup. Ct. 2010), the court ordered that the plaintiff turn over authorizations to the defendant that would allow them to contact Facebook and MySpace for the purpose of getting access to the plaintiff’s deleted online material.
Even though defendants do not have automatic access to your profile, we recommend that if you are contemplating making an injury claim, you should cease posting online and consider taking down any online profiles until you speak with an attorney.
If you decide to go forward with a potential claim, Zachar Law Firm can help guide you to ensure that you maintain your privacy and receive a maximum recovery.