Representing victims of serious harm and death

Social Media and Informal Discovery

This post was written by Timothy M. Whiting, Sara M. Davis, and Melissa M. Anderson.

Thanks to social media, the internet is a very busy place these days. More and more people, of all ages and backgrounds now use the internet on a daily basis to access and share content with family, friends and the world. According to Jeff Bullas, as of 2014, 72% of all internet users are active on social media.

It may not come as a shock that 18-29 year olds are cited as being the most active, with 89% regularly using social media. However, more surprisingly, even older generations are active on social media at staggering numbers. In fact, of all 30-49 year old internet users, 72% are active on social media, and this number is still high at 60% for 50-60 year olds.

As people of all ages are quickly adopting social media as a personal outlet, it is important for personal injury attorneys to understand how these websites can be used strategically by both sides in routine litigation and discovery even before a claim is filed.

As personal injury and truck accident attorneys, we know all too well the pitfalls of careless social media posts. As we’ve written previously, trials courts are beginning to come to grips with social media, establishing rules and guidelines for its admission into personal injury litigation.

Discussing Social Media Before Filing Suit

For personal injury and truck accident attorneys, it is important to discuss the dangers of social media with clients even before a demand is sent or a complaint is filed. During the initial intake, attorneys should advise clients to avoid using social media throughout the entirety of the litigation process. Not only can status updates and pictures be harmful to a claim, but even “liking” certain activities and locations can give a defendant insight into a plaintiff’s personal life. Further, attorneys should suggest that their clients enable strict privacy settings on all of their social media accounts. Privacy settings can be used to prevent personal information from being viewed by the public and make it more difficult for the defense to conduct informal discovery, defined as factual research which is obtained without document requests, interrogatories, subpoenas or depositions.

Once Posted, Leave It Online

While it is important for attorneys to advise clients against future social media use, modifying past social media activity is off limits. Warn your clients against changing any social media content they have already posted. While individuals may be tempted to edit or delete past posts or take down their profiles altogether, this is not recommended. Litigants have a duty to preserve relevant evidence that they know, or reasonably should know, is likely to be requested in foreseeable litigation. Deleting or altering social media data is a breach of this duty. It is important to properly counsel clients on this early as retrieval of deleted or altered information may be both difficult and costly.

The Defense Strategy and Social Media

Understanding the defense’s strategy can help plaintiff’s attorneys properly counsel their clients on social media content. Upon learning of a potential lawsuit, the defense will likely conduct as much informal discovery as possible. Using search engines and social media sites to learn more about a plaintiff is ideal for the defense since it is both free and easy! If they find that a plaintiff has a public social media account, the defense will likely check it periodically throughout the litigation. These sites provide quick access to a plaintiff’s interests, activities, and other information that can be used to harm the claim. For example, if a plaintiff posts a picture of themselves after a long run, such evidence can be used in a deposition when questioning the plaintiff on the severity of their injury. Even treating physicians may be asked whether they knew the patient was engaging in such activities during treatment and how it could affect their recovery.

Insurance adjusters may also conduct a general search of a plaintiff’s social media accounts before they begin negotiating. While this evidence may be held inadmissible in court, it can be used favorably by insurance companies for settlement purposes. In some cases, the insured defendant may already have a relationship with a plaintiff that predates the litigation. If this is the case, the insured may have access to information that the insurance company does not. While a plaintiff’s page may be protected from the public using privacy settings, the defendant may have access to it as a Facebook friend, twitter follower, or LinkedIn connection. Using their profile, the insurance company is able to get access to a plaintiff’s “private” page. Because of this, the plaintiff must be even more careful with what he or she posts on social media and may even want to consider “defriending” or “blocking” the defendant throughout the course of litigation.

Make Friends and Family Aware of the Issues

Attorneys may also want to consult their client’s friends and family on the dangers of social media. If a plaintiff’s social media pages are deplete of information, the defense may cast a wider net and begin looking at the profiles of those close to them. Warn individuals who spend the most time with plaintiff not to post pictures or public updates that include the plaintiff until litigation concludes.

The Front Page Test for Social Media Content

When consulting your client and others about social media content and litigation teach them the “Front Page Test.” In regards to social media, it is best to assume anything that is posted on the internet will be publically accessible. This being said, if the photo or post were to appear on the front page of your local newspaper, how would this affect the claim? Would the defense be able to use it against you? If the answer is yes, then it is better to be safe than sorry and send the post to a friend or avoid sharing it altogether.

Overall, it is important to remember that social media is an easy and cost efficient way for the defense to get information about a plaintiff that could potentially harm their claim. Counsel clients on the importance of monitoring their social media use using the “front page test” and encourage them to tell their family and friends to do the same. When it comes to litigation, the less information out there for the public to see the better.