If you are a plaintiff with a facebook account, you need to read this article. No matter what privacy settings you use on facebook (or any other social networking site), you must assume that everything you post will be viewed by opposing counsel in your personal injury lawsuit. The best thing you can do for your lawsuit is to stop using facebook completely from the time of your accident through the conclusion of your lawsuit. If you lack the willpower to do this, you should at least know how your postings will be used against you so you can limit their impact on your case.
How Will Opposing Counsel Access My Facebook Account?
This is a pretty easy question to answer. Without needing to resort to any underhanded tactics (such as tricking you into “friending” one of his investigators), opposing counsel can get your facebook information through discovery. Normally, this would be accomplished by subpoena. However, due to certain laws affecting electronic communication, subpoenas alone are often ineffective when trying to obtain online information. So, more likely than not, he will ask the judge to require you to give him written authorization to get your facebook information. Expect that this request will be granted — it may not, or it may be limited in some respects, but a smart person assumes the worst. The defense attorney will then subpoena your facebook account information with your written authorization attached, and facebook will produce the information to him.
How Can My Facebook Account Hurt My Lawsuit?
Let’s start with any photographs you’ve posted online. People tend not to post pictures of themselves doing nothing, or of them convalescing on the couch or in bed. Rather, they post pictures of themselves on vacation, or outdoors, or at parties or other social functions. So if you are claiming a back injury in your lawsuit, but have posted pictures to facebook of you after your accident on a jet-ski or dancing, how do you think that will look to a jury? Sure, there are plenty of people with legitimate injuries who have perfectly good excuses for these types of photos: “I was having a rare good day when my pain wasn’t so bad,” or “Yeah, I did that, but I was bedridden with pain for a week afterward.” Do you want to rely on a jury believing these excuses? Honestly, if you are involved in a personal injury lawsuit, you should not take any pictures of yourself doing anything involving physical exertion. Your personal photos can be obtained by opposing counsel through discovery regardless of whether you post them to facebook — though this relies upon you actually producing the photographs — photos that only you know about and that only you can produce. However, if you post them to facebook, you can be sure that opposing counsel will get them.
Aside from photographs, you are delivering an unfiltered list of your friends to opposing counsel — friends who also have facebook accounts which may contain photos of you (some of which you may never have seen). Have you de-friended someone? Who better to contact for information that could hurt your case than a former friend?
Do you write embarrassing comments on facebook? Have you bitched about your job or *gasp* your personal injury attorney? While things like this will likely not be admissible in court, they are discoverable by opposing counsel, who may have no qualms about mentioning these things to potentially offended parties. Do you think having an angry boss or lawyer won’t hurt your lawsuit?
Do you have funny friends who post embarrassing things on your facebook account? You will want to put a moratorium on that behavior until the lawsuit is over.
Now for something you probably didn’t think about: how much time do you spend on facebook? If you are claiming an injury that precludes you from doing a sedentary job, it won’t look good for your case if you play farmville 10 hours a day.
Giving Out Free Information About Yourself
I understand that social networking has created a new age of
narcissism openness and sharing of information for a lot of people. However, there is such a thing as over-sharing — especially when you are a personal injury plaintiff. A good rule of thumb for personal injury plaintiffs is not to put anything on facebook that you would not gladly hand over to opposing counsel — because that is exactly what you will be doing (o.k., maybe not so gladly).