I believe that Plaintiffs should receive the same kind of informed and careful representation that major corporate clients probably receive from their teams of lawyers on the Defense side. More and more Defendants are making blanket demands for injured people to give free access to their info on Facebook in personal injury cases. You must beware the consequences of social media, but do not sign away your rights to private social media just because you were asked. Does your lawyer know how to protect your Facebook in personal injury cases?
Photos, videos, momentary posts can lead even reasonable people to believe things about you that might not be true. Get that feeling of sharing special moments by actually sharing them with specific people, not the entire world. The people who really care are going to care for the reasons you want them to care, not because they’re trying to dig up dirt against you. Facebook has privacy features to a limited extent, but there is no telling who exactly is going to be able to see what you post online and no telling how Facebook might change its privacy functions or how your information might slip out inadvertently. Privacy features will not prevent relevant information from possibly coming out.
Corporations don’t usually post about romantic encounters, getting drunk, humor in bad taste, or ill advised decisions as freely as real people do, although faux pas happen and you can bet those things happen. Just as you would like to find the Defendants doing something which undermines their case, they would like to find Plaintiffs doing things which undermine their cases. In personal injury law, the Plaintiff is always an individual while the Defendants are often corporations. If you are litigating a personal injury case against a company, the company does not share the temptation to post everything on Facebook. It has other foibles, but not the desire to post so freely on social media. Real people tend to use Facebook more liberally than corporations. Corporations tend to control their social media presence much more carefully than people.
Is it unfair to treat Facebook the same for Plaintiffs and Defendants? Plaintiffs are always human and suffer from the kinds of needs that humans have, like the desire to share their experiences with others. We have personal lives with human engagements. Conversely, corporate defendants often have teams of public relations professionals to manage their brand identities through layers of corporate bureaucracy.
The law is prone to evolve in this area as it is fairly new. Judges have differing opinions as to whether to grant access to Facebook in personal injury cases. The mere fact that you use Facebook or any other social media is not enough of a basis for the Defendants to access your account. Vague assertions that your Facebook information might contradict your claims are not a proper basis for authorizing free access to your private Facebook account information. See e.g. Forman v Henkin, 134 AD3d 529, 532 [1st Dept 2015]. Objections are warranted.
What is public is public. That’s the bottom line. Before Defendants can access anything you do not post publicly though, they need a “reasoned basis” to prevent abuse. What is a “reasoned basis?” It is enough of a hook for a judge to hang their hat (or robe) on to say that private parts of your Facebook account will show information relevant to your case. Posting public photos or information about yourself which leads reasonable people to believe the private info will shed light on your case is just such a hook. For example, information may be released if you alleged that you cannot play piano anymore due to your injuries but a Facebook pic shows you at a piano after the date you got hurt. Overly broad access won’t be allowed but relevant information can be shown.
If you have questions about protecting yourself from overly broad demands for info about your social medial and Facebook in a personal injury case, give us a call.