The statistics are stunning. Numerous studies have shown that nearly 3 billion people use social media. Social media sites such as Facebook and Twitter have been praised for their benefits and criticized for their dangers, and both proponents and critics of social media probably have valid points to make. One danger of social media that most people are unaware of, however, is its possible use against you as a plaintiff in a personal injury lawsuit.
Treat the insurance company you are claiming against as if they were the CIA. Because if your claim is sizeable, you can bet that their tactics will resemble CIA tactics. Assume that your social media accounts are being monitored by the insurance company, because they probably are.
“Pain and Suffering” Damages
The fact of your injury may be difficult for an insurance company to dispute – after all, a broken leg is hard to argue with when medical evidence confirms the injury. In many personal injury lawsuits, however, the largest claim for damages is reserved for “pain and suffering” – in other words, the physical suffering that you endure because of your injuries. Compensation for pain and suffering often amounts to several times the amount of compensation for medical bills.
With many injuries (such as traumatic brain injury) and damage to soft tissue (as in a whiplash claim), the amount of pain and suffering involved is open to dispute and is largely dependent on your own testimony. It is under these circumstances that an insurance company is most likely to search high and low for ways to deny the seriousness of your suffering.
The Rules of Evidence Determine which Evidence Can Be Used as Evidence against You
Never forget that, when it comes to a personal injury claim, it is not the truth that matters so much as what you can prove through admissible evidence. New York’s rules of evidence contain some very counterintuitive provisions that could harm your case in ways that you might never suspect, by allowing dubious evidence to be used against you or by preventing certain evidence from being presented in court at all.
The Discovery Process Can Uncover Social Media Evidence That Can Be Used against You
The discovery process begins only after a lawsuit is filed. At that point, either party can demand evidence that is in the possession of the other party (or a third party such as Facebook), including social media posts and out-of-court witness testimony under oath (known as a deposition). If the other party refuses to respond, the requesting party can seek a court order demanding access to this information.
Before a formal complaint is filed, however, the discovery process cannot commence – at least to the extent that a court order can be used to enforce a request. Fortunately, many personal injury claims are resolved without a formal claim ever being filed with a court, resulting in the claim being resolved without any “discovery” evidence being disclosed.
Privacy Settings and the “Reasonable Expectation of Privacy”
Sometimes it is necessary for a plaintiff to file a complaint with a court, even if the plaintiff intends to eventually resolve the case through an out-of-court settlement. This is often done for the purpose of pressuring the insurance company to issue a reasonable settlement offer. Sometimes, however, insurance companies prefer that a complaint be filed so that they can take advantage of the discovery process.
One critical issue that most people would not expect is the way that a “reasonable expectation of privacy” is handled when it comes to social media posts that are uploaded while the sender’s account has been set to “private.” When a reasonable expectation of privacy is present, it takes a search warrant or a special exception to the warrant requirement to obtain evidence that is deemed to be subject to a reasonable expectation of privacy.
Believe it or not, however, numerous court decisions have held that social media posts uploaded when the user’s account is set to “private” can be accessed during discovery proceedings, even when the person demanding the posts was not among the social media user’s “friends” who had permission to access this information. That means that even posts intended to be shared only with friends can potentially be accessed by insurance companies during the discovery process.
Sensible Precautions to Take
The following are some tips on how to prevent your social media accounts from becoming the functional equivalent of witnesses against you in court or at the negotiating table:
- Set your privacy settings to maximum unless there is a very good reason not to (if you rely on your social media account for income, for example, or you are an internet celebrity). Even after setting your account to maximum privacy, don’t count on this to protect you – there are ways of getting around these protections, as mentioned above. It is still better to set your profiles to private.
- Don’t accept friend requests from people you don’t know, for obvious reasons. Once someone becomes your “friend,” they can gain access to information from your profile that would otherwise be invisible to them. Even people you think you know might be imposters.
- Don’t talk about your accident or your injury at all, even to stress how seriously you were injured. If you are found to be exaggerating your injuries, it could hurt your credibility in court or at the negotiating table.
- Don’t discuss any conversations you have had with your lawyer, because this could result in the waiver of “attorney-client privilege,” which means sacrificing a potentially important advantage.
- Do not seek to reassure your friends that you are “OK” – after all, if you are OK, why should you be entitled to any compensation?
- Do not upload any photos of yourself, especially if you are smiling, appearing to be having a good time, or present at a social event. Even old photographs taken before the accident could be characterized as post-accident photos. Social media sites, at most, tell you when the photo was uploaded, not when it was originally taken.
- Even a “smiley face” emoticon could potentially be used against you. That is how careful you have to be.
- Do not allow anyone to photograph you or the accident scene except you, the police, and your lawyer. These photos could end up on someone else’s social media account, and they could be located by your insurance company, especially if you are “tagged” by name.
- Don’t even post evidence that you believe is favorable to you, such as a photo of you in traction at the hospital or photos of the damage to your vehicle. Taking these photographs is fine, but sharing them on the internet could result in unintended consequences.
- Warn your friends not to post anything about your accident and, especially, not to upload any photos that include you or ”tag” you in any photographs. Although in many cases, the hearsay rule will protect you against utterances by friends from being used as evidence against you, the hearsay rule is subject to many exceptions. Photographs, by contrast, are not protected from admissibility by the hearsay rule.
- Don’t email anything to your friends about the accident or your injuries, and ask your friends not to email you anything of this nature. Even emails might be recoverable in the discovery process.
- If your case is publicized in the media and you are subjected to public criticism or skepticism, resist the temptation to defend yourself, argue with your critics, or attempt to clarify misconceptions. Keep your emotions under control.
- Don’t assume that an online pseudonym will protect you – if your enemies can “dox” you, so can the insurance company.
- DO NOT DELETE ANYTHING YOU HAVE ALREADY POSTED FOLLOWING YOUR ACCIDENT, NO MATTER HOW DISADVANTAGEOUS IT MAY BE TO YOU. In a worst-case scenario, you could be accused of evidence tampering, which can be prosecuted as a criminal offense.
- Refusing to post anything at all on any of your social media accounts after your accident does not constitute tampering with evidence. After all, you cannot “tamper” with evidence that was never generated in the first place.
But What If My Case Is Settled out of Court? Does Admissible Evidence Even Matter?
Yes, it does. Your bargaining position in settlement negotiations is directly proportional to how strong your case would be if you took it to court, and the strength of your case is directly proportional to the weight of the evidence for and against your claim. If your claim is undermined by social media evidence, you are likely to lose either in court or at the settlement table.
There isn’t necessarily any need for you to close down your social media accounts entirely – in fact, this might raise suspicions that you have something to hide. It is imperative, however, that you strictly observe reasonable safety precautions.
Start Taking Safety Precautions Immediately
If you have been victimized by any kind of serious personal injury that you believe someone else may be responsible for, today is the day to begin implementing the foregoing safety precautions to protect the value of your potential claim. Contact E. Stewart Jones Hacker Murphy immediately, either by connecting with us online or by calling our Albany office at (518) 730-7270, to schedule a free initial case consultation. We also maintain offices in Colonie, Schenectady, Saratoga, and Troy.