In our practice, may, perhaps a majority, of clients now have social media accounts – Facebook, Twitter, Instagram, LinkedIn, SnapChat, and occasionally older services like MySpace. Insurance companies and defense attorneys are well aware of this fact, and it is now commonplace for this information to be requested in connection with a personal injury lawsuit.
To begin with, it is obvious why defendants and their insurers and attorneys seek this information: in some instances, personal injury plaintiffs post information on their Facebook (or Twitter, etc.) accounts that is harmful to the case and helpful to the defense. A plaintiff who claims a debilitating injury but posts pictures of waterskiing (or some other active sport) after the fact is probably exaggerating, or even flat-out lying about, their injuries. If we discovered any behavior like this on behalf of our clients, there's a good chance we'd withdraw from the case because of the dishonesty involved.
Fortunately, that scenario is not one that we've faced. More often, the client's social media account has no information about the personal injury claim, or only innocuous information that neither helps nor hurts the claim. But these accounts also often contain personal and private information about the client and others, and sometimes political or other opinions that the client would rather not be shared publicly. Unfortunately, insurers and defendants generally seek Facebook and other social media information without regard to this face, particularly when the client's privacy settings will not allow non-friends or followers to access the information.
Georgia courts have generally approved of the admission of social media evidence at a hearing or trial as a matter of evidence law. As long as the Facebook or Twitter post is sufficiently authenticated so that the court can conclude that it is legitimate, it is considered a matter for the jury's consideration. The bigger question, however, is whether the defense and insurer are entitled to see the information at all.
Social media evidence is generally produced during the discovery stage of a personal injury lawsuit. This stage occurs after the defense files its answer to the lawsuit and before trial; by default, this period is six months in state courts. To obtain this information, the opposing party must request it, and must make a showing that the information is “discoverable.” For example, a defendant cannot generally ask for “any picture ever taken of you”; if objected to, the court would require the defendant to explain why the information is discoverable (meaning relevant, or potentially relevant). A proper request might ask for “any pictures you intend to introduce at trial, and any pictures that show the injuries you are claiming in this lawsuit.”
With social media discovery requests, novel questions are presented, and this area of law is evolving. Courts appear somewhat reluctant to allow a party to obtain another party's private Facebook, Twitter, or Instagram information without some showing that the information might be relevant to the case. On the other hand, if the party has no privacy settings so that anyone in the public can access the information, it is probably not protected.
As a very general matter, some courts have held that privacy-protected social media accounts are not discoverable unless the publicly available information (cover photos or other information) provides any information that is inconsistent with the claims made in the case. For example, even if a personal injury plaintiff's social media accounts are set to private, a photo of the plaintiff running a race in a case where the person claims he or she can hardly walk may be sufficient to open up the account to disclosure to the opposing party.
In other cases, a party may make an innocuous comment that could be “spun” the wrong way by a clever defense attorney. Joking comments about injuries that seek to either minimize or exaggerate the injury, even if meant sarcastically and only for friends and family, may be detrimental to the case at trial. And even comments unrelated to the case itself may prove detrimental. Photos or comments about alcohol or drug use, for example, may be problematic. In some cases, judges will review social media evidence to determine whether it should be produced to the opposing party, a procedure we have followed on several occasions.
In a recent New York case, the highest court in the state ruled that a personal injury plaintiff's Facebook data, including photos and messages, were required to be produced to the defendant, even though the plaintiff had her Facebook settings set to private. Thus, this case demonstrates the potential for such information to be disclosed regardless of attempted protections. It should be noticed that New York law differs somewhat from Georgia law, but the decision is instructive.
It is a good idea in any event to be careful what is posted on social media, but especially so when private comments may be obtained and misconstrued by an attorney for an insurer or defendant who is attempting to minimize a claim. It should be noted that the mere fact that a personal injury defendant (or plaintiff) is able to obtain information does not mean that it will ultimately be admissible at trial, but under the Georgia Evidence Code the tendency is toward admission of evidence that may be relevant in any way as long as it is not excluded by some other rule.