Home / Blog / Social Media’s Impact on Your Claim

We live in a digital world where virtually everyone utilizes some form of social media, whether it’s Facebook, Twitter, Linkedin, YouTube, Pinterest, or Instagram. It is not uncommon for people to share personal thoughts, feelings, and details on these platforms, especially when something traumatic happens to them through no fault of their own. We understand posting personal information on these sites is often done instinctively, impulsively, and with the best intentions, but the risks presented by this kind of transparency are heavy because it can seriously undermine the value of a personal injury case.

Our firm advises our clients to cease posting anything on all social media platforms until their cases are successfully resolved. We recognize this is a sacrifice for many, but our judgment is based upon the law and how the defense can use your or your family’s posts to undermine your injury claim. At the very least, we ask our clients to put their privacy settings on the highest level possible, as virtually every claims adjuster and defense attorney will scour the web to find any social media information they can to hurt your case.

In our firm’s long litigation history, we have seen occasions in which defense attorneys and insurance adjusters access your social media and use it during the course of your case, oftentimes confronting witnesses with posts during depositions or a trial. Initially, after filing your lawsuit, the defense will likely request your username and password for all social media accounts during discovery. Simply put, discovery is the process through which both the defense and the plaintiff gather any information that will prepare them for trial. Information that is discovered is made available to both sides. The Indiana Rules of Trial Procedure 34 (A)(1) allow parties to serve any other party a request to inspect and copy electronically stored information “including, without limitation, writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations from which information can be obtained…” Your social media accounts fall under this category and are therefore normally discoverable under Rule 34 and Rule 26 (b)(1).

Rule 26 (b)(1) determines how discovery is carried out. Specifically, it outlines that discoverable information must be produced on “any matter, not privileged, which is relevant to the subject-matter involved in the pending action.” This extends to the “existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” This very likely includes digital or online matter outlined in Rule 34.

Defense attorneys will likely be looking for any information they can find to present to a judge or jury that will in some way undermine your claim. Understand that the defense will use information gathered in discovery to either bar or diminish the value of your claim. There is no guarantee that they will be successful, but the challenges your social media can present need to be considered.

While this article may worry those who have actively posted on social media for a long time, there are limits to this process that may offer some hope that our firm can block some of the access to irrelevant or prejudicial posts. Rule 34 demands that requests must be “reasonab[ly] particular.” Meaning that if they do not ask specifically for information, it does not have to be provided. Additionally, the defense cannot go on a “general fishing expedition,” which means they cannot needlessly search for any information under the sun. The information sought should pertain to the pending action and your injury and damage claims.

Armed with this information, here are some additional guidelines for you to keep in mind as your lawsuit is ongoing:

Do not…

  • Allow anyone to become a “friend” on a website like Facebook unless you are absolutely sure you know that person.
  • Post any photographs or video of yourself (or enable others to ‘tag’ you).
  • Write or disclose anything about your personal life that you would be embarrassed to have a defense attorney use against you in front of a judge and jury.
  • Post anything that undermines your potential injury claim.
  • Send emails or text messages regarding your case to anyone except your attorneys and their team.
  • Send messages via a social media platform regarding your case.

Do…

  • Presume that everything and anything you post will be seen as if it was published on the cover of the New York Times.
  • Tighten your security settings.
  • Be cautious about what you share.
  • Trust your attorney’s experience with social media during litigation.
  • Limit your interaction with social media.
  • Inform your attorney of posts relevant to your case.