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Social media has become central to many of our lives. The average person spends more than two hours a day on social media. You probably found this article on a social media platform.
As a personal injury attorney, I have strong opinions about posting on social media after a car accident. Commenting on social media about a car accident can seriously damage your insurance claim. It could cost you money you deserve to have.
When an insurance adjuster or an opposing attorney investigates your claim that you have been injured, he or she will inevitably look for evidence in your social media accounts. Just as you can search for and find friends on Facebook or other platforms, an investigator can find you.
In fact, an investigator can find more about the target of his or her search on Facebook, Instagram, Snapchat or other sites than you can. Privacy settings in social media mean next to nothing if you have useful information behind the wall.
Court Says Lawyers Can Have Your Private Social Media Content
Lawyers have known for several years that checking social media accounts is a necessary, routine step when investigating new cases. From a Facebook account, for example, an investigator may be able to ascertain relationships or see statements or actions that help to impugn a witness’s credibility. A Facebook post showing photos of your ski trip in January will put a swift end to your claim of debilitating whiplash or back injury from a December car accident.
Lawyers’ requests for content from social media accounts have become part of the formal “discovery” process, in which the parties to a lawsuit demand production of documents, written statements and other information that may be used as evidence in the case. In New York last year, an appeals court said discovery in a car accident claim could include “private” social media content that a lower court had ruled off limits.
The New York Law Journal described the appellate ruling as declaring that “a defendant’s data mining expert may scour a plaintiff’s electronic devices and email and social media accounts for evidence of physical activity following a motor vehicle accident.” It allows “an expert to cast a wider dragnet … for deleted materials, tags and documents.”
In other words, whatever an expert can get an algorithm to find is fair game if it might be used as evidence.
“With the use of technology, we can now recapture and obtain photographs, videos, emails, texts and social media postings created by the plaintiffs themselves that contradict their current claims of injury and challenge their current claim as to how the incident occurred,” Kenneth Pinczower, house counsel for Nationwide Insurance, told the Law Journal.
In the relevant case, the plaintiff was a former semi-pro basketball player who said he had been injured and disabled in a car accident and had to give up playing. You guessed it: The defendant’s attorney found photos of the plaintiff playing basketball posted to social media. He hadn’t even posted them, but he was tagged in a friend’s post, so they became part of his Facebook feed.
When the plaintiff said they were old photos, the defendant demanded access to metadata, which would show when the photos were made and posted. The original court balked, but the order from the appellate court allowed the deeper dive.
Data Mining: Thorough Search of an Accident Victim’s Social Media
If the defense team can show that the facts of the car accident case indicate that information the accident victim has shared online could be relevant, the defense attorney can demand access to it during the discovery process. At this point, the plaintiff should expect that the defendant’s investigators will search every social media and email account on every computer and mobile device they own.
The reference in the Law Journal article to the defendant hiring “a third-party data miner” to search the plaintiff’s social media accounts is important to note. These are the people who are skilled at digging up information online. Legal teams turn to data miners regularly.
Indeed, you can find another blog post about the ruling from New York on the website for X1, a data mining company with a proprietary social media search tool. This ruling is very good news for companies like theirs.
The New York case only applies as a matter of law in that state, but it is indicative of where the courts’ thinking is and will certainly be cited in arguments over the scope of discovery in other states. What is ultimately allowed in your case would be up to the presiding court in the state where the accident occurred, but most judges are increasingly comfortable with admitting social media evidence.
Stay Off of Social Media After a Car Accident
If you have been seriously injured in a car accident that someone else caused, you will fare better by hiring an experienced car accident lawyer to help you with your insurance claim. A car accident attorney can help to ensure you obtain fair compensation for your medical expenses and other losses.
And you can expect an experienced car accident attorney to counsel you to stay off of social media while your claim is pending. Ideally, you should not discuss a pending injury claim with anyone except your doctor and your attorney.
In Central Virginia and the Shenandoah Valley, the Kendall Law Firm can advise you about your legal options after a car accident. Our personal injury attorney offers a free, no-obligation initial consultation. If we can pursue a claim for you, you will not owe a legal fee unless we obtain compensation for you. Contact us to set up a meeting in our offices in Charlottesville, Harrisonburg, Winchester, Staunton or Woodstock, VA.