United States courts are not yet in agreement regarding the rights of privacy guaranteed individuals versus the rights of the attorneys who may request social media content during the discovery process of a legal matter. This issue continues to be debated in different types of cases such as personal injury law, employment law, criminal law and especially in family law.
It is not surprising that during the mudslinging that occurs in family law court that the unflattering social media content of an ex-spouse is often requested to be allowed to be brought before the judge. However, many may wonder why in a simple personal injury claim, would any insurance company or their attorney want a person to produce the content of their social media sites?
When a person has suffered a severe injury that is chronic and permanent in nature they may suffer a degree of depression or emotional distress. The depression may be due to the pain they are experiencing, due to their inability to engage in activities they used to, due to the grave nature of their injury, for example, the loss of a limb, the loss of mobility of a limb or body part, or due to the adjustment of seeing doctors on a weekly basis, the adjustment of getting using a cane or wheelchair, or for a plethora of other reasons. The lawsuit filed in behalf of an injured person may include compensation for the emotional distress their injuries caused.
The lawyer of an insurance company may attempt to claim that the photos or posts a person puts on social medial is a reflection of the emotional state of the injured person and may therefore argue before a judge that they have a right to this evidence. A personal injury lawyer will fight for their client’s right to privacy.
A personal injury lawyer will fight defense lawyers on these discovery ‘fishing expeditions’ because they recognize that an injured person, in an attempt to communicate with their friends on social medial that they are attempting to feel hopeful or positive about their situation may write, ‘Feeling pretty good about life today.’ The insurance company may use this same post on social media to say that the injured person was not suffering from depression since they posted they ‘felt good.’ They may then try to say that since the person ‘felt good’ this means they had in fact recovered from from their injuries and therefore any medical treatment that was obtained after the date posting that they ‘felt good’ was unnecessary and therefore they, the insurance company, should not have to pay for the medical treatment incurred.
Another scenario, perhaps a person is invited to a wedding of a loved one. They then get in an accident perhaps weeks or days prior to the wedding. The day of the wedding arrives. The injured person does not physically feel well or perhaps is still in great pain due to their injuries. However, the injured person may choose to attend the wedding despite the pain because the person does not want to miss the major life event of a family member or friend. They may feel their attendance is way to demonstrate to the friend or loved one that they are loved and supported. Or it may due the sense of responsibility that they had committed pre-collision and do not want their loved one to have to change any plans already set up with airline companies, catering companies, etc. Photographs are then taken at the event. In this day and age, before the couple has even finished saying ‘I Do’ photos of the event are promptly uploaded on social media sites where the people captured in the photos are then ‘tagged’. Social media now left a public trail of what the injured person was doing on that date. Not a big deal right? It was just a wedding.
Well, when photographs are taken at such happy events, regardless of the degree of pain
one is experiencing, one smiles so that the photos commemorating such events demonstrate the heartfelt emotion of joy for the loved ones nuptials. However, insurance companies may attempt to use such photos as an attempt to persuade a jury that the smiling person in photo is not injured. They may reason that the smile is indicative that the person was not in pain or they may go further and claim before a jury that the injured person’s attendance at the wedding demonstrates that the injury did not impact the person’s personal life in any way because if it had then they injured person would not have been present. Such an argument leaves out the complex emotional reasons why the person was present at the wedding despite their pain or injury.
Both examples demonstrate that a simple post or photo on social media can be twisted before a jury. The issues surrounding social media and the rights of privacy versus the rules of discovery will continue to work its way through the legal system for many years. At present, some courts have ruled in favor of producing social media content and other rule against it.
With ever changing rulings, attorneys advise their clients to be cognizant of the impact social medial has on the world today. If one ever finds themselves in the middle of a family law matter, a personal injury matter, a criminal matter or an employment matter, lawyers will advise their clients to refrain from making any negative or positive comments regarding their matter in any way shape or form. A lawyer will also advise their client to not comment on any of the persons involved involved in the matter, the judge, the insurance companies involved or the lawyers involved as these posts may have a negative impact their legal claim.
If you have hired a personal injury lawyer this subject matter may arise if your claim proceeds to trial. An experienced personal injury lawyer will represent your rights during the discovery process and will fight attempts of an insurance company to rummage through private social media posts by filing a motion on your behalf.
Photo Attribution: By Jeff777BC (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons