Social Media in the Courts
This post was written by Sara M. Davis, a Partner at Whiting Law Group.
As social media has weaved its way into our modern society over the last ten years, the Courts in Illinois, Wisconsin and across the country are responding with decisions and rulings that effect their use and admissibility in personal injury litigation.
In today’s day and age, we share all sorts of information with our friends, family and the world about our daily activities, our health, our work and our private lives. As a personal injury lawyer, I have seen many instances where clients didn’t really understand with whom they were sharing their personal information – or that it really could be accessed by just about anyone in the world.
How Opposing Counsel Obtains Access to Your Social Media Content
There are a number of ways that attorneys for both plaintiffs and defendants are working to obtain social media posts for the parties they are fighting in court.
Open to the Public: Many people do not restrict access to their Facebook, Twitter, Google+ and other social media accounts. Whatever those people post can be seen by anyone with an account on the same service.
Subpoenas: According to its general counsel, Facebook is actively and strongly fighting turning over content that is posted in the private accounts of its users.
Discovery: With increasing frequency, attorneys are submitting formal, legal requests for information on posts, photos and messages – even in private accounts. To date, the Courts have been inconsistent on the rulings on this topic. Most court decisions have allowed posts and photos relevant to the issues in the lawsuit.
Don’t Delete Those Social Media Posts!
While the temptation to delete embarrassing or personal information may be intense, it is important not to delete it once formal litigation has begun. Deleting social media posts can be considered destruction of evidence. Unfortunately, embarrassing as it may be, the best legal approach is to leave the social media content.
How Social Media Posts Are Being Used in Personal Injury Cases
Lawyers on both sides of the negotiation table are using social media discovery either to bolster their own cases or to attack the case of the other side. Below are just a couple of key ways that social media is being used in personal injury and accident cases.
Disproving severity of injuries: Defense counsel has used social media content in an attempt to demonstrate that the plaintiff is not injured as is alleged. For example, I’ve dealt with defense lawyers taking photos from social media and using them out of context. A picture of my client at a baseball game depicts an enjoyable outing with friends – not the pain he endured while at the game or the parts of the outing in which he could not participate.
Detailing actions before or after an incident: Counsel on both sides of the litigation will look to social media for evidence that the other side is an accurate historian. If the defendant claims to have been sleeping at home on the night before a fatal crash, photos on Facebook showing him out at a bar tell a very different story.
As with some much of the advice that lawyers share with their clients, the key message with respect to social media is to be highly vigilant about what information is put out on social media. Before posting anything, consider that information being read or shown in court.