At the end of a recent trial ending favorably for my injured client, I learned something. My client had just obtained a verdict over ten times what the last offer from the defense had been. The defense had been unusually stubborn, pursuing a scorched earth defense. When handing me the check for the full verdict amount in his office, my defense counterpart also shared a photocopy of an anonymous e-mail his insurance adjustor had received before the case. The anonymous “tip,” stated that my client was crazy, immoral and lying about the extent of her injury. This unfounded tip informed their defense. The “tip” was entirely founded upon photographs and Facebook information and misguided deductions. I was incredulous. After reading the paper, I looked up at defense counsel and asked: “You relied on this?” He looked down, “Well, the adjustor gave it a lot of weight.”
This all-to-true tale suggests one of the dark sides of social media. People who don’t know you, think they have enough information to make judgments about you. And, to a real extent, we are collaborators in any misunderstandings by others. When we post only the sunny photographs of parties and vacations and happy times with family and friends, undimmed by the grit and gray that touch every life, we give a false impression. “This guy claims to be hurt? Give me a break!”
Now imagine that you have suffered an injury and the only pictures you post are those of you with family and friends on vacation. “Smile!” For the split second that the camera is on you, you look happy. The truth may have been far different as all day, you sat watching others have all the fun while you endured a migraine, aching back, torn meniscus, trying to make the best of it for the sake of others. Few of us want to reveal our sadness, depression, or pain, if not for our own sense of pride or optimism, then, out of magnanimity, choosing not to inflict our misery upon others. Yet, anything we post becomes “evidence” against the post-traumatic impact of an injury upon us. “He claims he can’t work? Here he is in Hawaii!” Truth be told: the tickets had been bought before the injury and for the sake of spouse, partner, or kids, you go along, suffering through what should have be a time of sparkling joy and fun-filled activities. Sure, you can explain this. But, “Ladies and Gentlemen of the Jury, how badly was the plaintiff injured? And I don’t mean by sunburn on Poipu Beach! [pause for laughter]” The vacation just ended up being much more expensive for you as the jury subtracts tens of thousands of dollars from what might otherwise have been a verdict providing fair compensation. Just as a “picture” is worth “a thousand words,” even a truthful picture taken out of context can take many words in an effort to “explain it away.”
What you post can be seen far and wide by friends and foes alike. Insurance adjustors, defense counsel, and jurors all have access to information about you. Limiting access to your Facebook account is a start, but not a cure, as the subpoena power may require you to disclose what you have already shared with friends. Being judicious about what you post is important. But, even removing material posted after an injury or after litigation has commenced can be problematic, making it seem as though you are being less than forthright or even placing you at risk for sanctions from the court if it seems as though you are concealing evidence.
Taking down posts after-the-fact can raise the question of whether you have just engaged in spoliation of evidence. In Painter v. Atwood, 2-12-cv-01215 (D. Nev. 2014), a federal court in Nevada ruled on March 18, 2014 that online social medial posts can be evidence that cannot be willfully destroyed. In The National Law Review (March 11, 2016), an article, “Social Media and Spoliation – Can A Client Delete Her Facebook Posts” points out the danger of thoughtless posts:
Jurors, litigants, and their attorneys are increasingly savvy about social media. At the same time, it seems that many people do not use the same “filters” that they employ in other parts of their lives. Put simply, they are not thoughtful about how their social media activity might be perceived. A classic example of this is a Facebook post at the center of a now infamous case that demonstrates the dangers of social media. In Lester v. Allied Concrete Co., 2011 Va. Cir. LEXIS 245 (Va. Cir. Ct. 2011 Sept. 6, 2011), the wrongful death plaintiff lost his young wife in a tragic accident, yet his Facebook page included a photo of him “clutching a beer can, wearing a T-shirt emblazoned with ‘I ♥ hot moms’ and in the company of other young adults.” Id., 2011 Va. Cir. LEXIS 245 at *12. –
See more at: http://www.natlawreview.com/article/social-media-and-spoliation-can-client-delete-her-facebook-posts#sthash.nCYtN8AF.dpuf
If this post has heightened your awareness of this issue, then it may already have served a good purpose. Ask yourself whether a photograph or a post will undermine your version of the case or the seriousness of your injuries. Recognize that the use of social media as legal evidence is a growing trend and unlikely to be reversed. Your blogs, personal websites, or accounts on social networking sites like Facebook, MySpace, Google+, Twitter, YouTube, Vimeo, Flickr, LinkedIn, Foursquare, Meetup or Pintrest, or even dating sites such as Match.com, E-harmony, OurTime.com, are all possible sources of information about you. Even though it would be improper in the view of most for a defense investigator to “friend” you to get access to your account, they will still have the information and they may or may not ever be caught.
The following are widely regarded as “best practices” in terms of social media use by clients in litigation.
1. Remember that what you post on the internet can (and will) be used against you. If you have a pending case, you can count on the fact that the other side is searching the internet for information to harm your case.
2. Use the most restrictive privacy settings possible. Review the privacy settings on all your social networking profiles to ensure that only people you know and trust can see your personal information, posts, photos and videos. Check and update your privacy settings every three months.
3. Keep in mind that the internet is a public place. Social media accounts can be hacked. Even the most stringent privacy settings do not keep the people you “friend” from sharing your posts and information on their own pages or elsewhere. Expect that your “friends” will share what you post.
4 Consider everything you post a permanent record. Much of what you post on the internet is permanently recorded somewhere. Facebook keeps all of your information even if you close your account. Search engines such as the Internet Archive Wayback Machine can find old webpages that have been altered or deleted.
5 Think about quitting all social media during your case. Some say the best course of action is to remove blogs, personal websites and social networking profiles entirely. If you don’t want to remove these sites, it’s a good idea to disable them until your case is over.
6 Never post anything on the internet about your case, your incident, or your injuries — ever. Ask your family and friends not to discuss your case on the internet, either on your page or theirs.
7. Never post any pictures or any descriptions of your activities, vacations, work or play that you may have to explain at your deposition — or in court to a jury.
8. Never use social networking messaging platforms to discuss your case. Even private messages can be shared by your friends or discovered by the other side. Discussing your case by e-mail or even in a personal diary can be discovered by the other side.
9. Never “friend” anyone you do not know personally. Sometimes unethical lawyers or investigators will access your webpage under a false name. Make sure you know a person before allowing them to access your website, blog or profile.
10. Never comment on news articles or blog posts about your case. Even if you make comments “anonymously” or with a different username or email, your comments may still be traced back to you.
11. Remember, even if you are totally honest and have nothing to hide – a common excuse for sharing in social media – what you post on social media is almost certain to be taken out of context and can prove to be harmful to your case.
12. Remember to discuss this issue with your attorney, especially if you feel that some of your posts may not fairly represent the state of your life during times material to your case.
Use of social media is just a subsection of revelations and communications about your case, which can be used against you. This ranges from posting videotapes on YouTube to writing in your diary to confiding in a friend or colleague – all of which can become the subject of formal legal discovery in your case. Discretion is a virtue.