Social Media and Discovery: Think Before You Post
What should plaintiffs know about social media and discovery?
You can learn a lot about someone through their social media account. You can observe their interests, hobbies, likes, dislikes, and much more. Social media is a great communication tool and serves as a platform to exchange views and opinions.
This probably is not the first time you’ve gotten the “watch what you post” lecture. You may have even given it to your kids. You probably know not to post a parody video about how much you hate your reporting job, like a couple in Arkansas did. If you’re a public figure like comedian Gilbert Gottfried you may want to tone it down on your offensive jokes. You may have seen how a parent reacted to his daughter posting negative comments on Facebook about her parents in a video that went viral a while back.
You get the point. There can be unfavorable consequences that arise based on what you post on social media sites. If you are involved in a lawsuit – or even if you plan to be – keep in mind that posts that would otherwise be perfectly acceptable could negatively affect your case.
Posting things like “I’m going to sue the crap out of them” or “All of my injuries are gone!” is obviously a bad idea. However, some things can be a little more questionable.
Things to keep in mind:
1.) Anything you post to social media is discoverable. It does not matter how “private” your page is. Rules governing discovery can trump both your personal privacy preferences and those established by the social media website.
2.) It is unlikely that anything you post will actually help your case. Posting on social media sites about your injuries has a better chance of hurting your case than helping it. Your attorneys are not going to be able to use your social media posts as evidence to prove your injuries, even if your posts do express that you are injured. Your posts may not affect your case at all, but why risk it? If you are questioning whether you should post something about your injury, you probably shouldn’t.
3.) Your statute of limitations could be affected. In some cases, the statute of limitations is measured when the plaintiff first knew of the connection between a product and his or her injuries. If you post about the connection between the defective product and your injuries, the defense may try to use this against you in arguing that your claim is time-barred based on the date of your social media post.
4.) Attorney/client privilege could be compromised. If you post about strategies you discussed in private with your attorney, it is no longer considered privileged information and could be used in trial. This may seem obvious, but it’s important.
5.) Things you say can be misinterpreted. Your friends may understand your humor, your peer group may understand sarcasm, but do you want to bet on whether a judge and/or a jury will interpret your posts the same way as your friends will? Probably not. Even if you mean something one way, understand that it can mean different things to different people, and in different contexts. You may want to put on a façade that you’re doing better to appease your worried relatives. But if you say you feel great, people are going to take that at face value.
We are not saying you should give up your social media activity, but as you can see it is increasingly important to weigh the benefits and risks of posting on a public platform.If you have a question about social media activity, talk to your attorney about it. He or she will be able to provide you with additional guidance.