Due to the widespread use of Facebook and Twitter, courts all over the country are handling discovery motions related to social media now. At this point, many social media tools are used to “check in” to businesses, identify your location, or mark other information that might otherwise be private.
In Maine, Rule 26 permits parties to obtain discovery regarding a non-privileged matter that is relevant to the subject matter involved in the pending action to the extent that the request is reasonably calculated to lead to admissible evidence. This can present a problem for people who use social media without regard to the possibility that it might need to be produced in a lawsuit.
A common scenario happens when you get injured and you either accept a Facebook friend request from someone you do not know or are already Facebook friends with someone who knows the insurer or people that work for the entity responsible for your injury. The new “friend” might be monitoring Facebook posts to see whether you are legitimately hurt.
You should be aware that if you post in ways that could arouse suspicion that your injuries are exaggerated, a Facebook “friend” may alert the insurer or the other side. For example, if you claim to have whiplash after an accident and then publically post about how you are now bench-pressing 200 lbs., you may trigger an inquiry. Similarly, if you claim pain and suffering damages or claim anxiety after falling from a cruise ship and then post pictures of yourself snorkeling, you may not seem credible on the witness stand at trial.
Of course, it is not only plaintiffs who can be asked to produce information from their accounts. There are cases in which a plaintiff asks for information on a defendant’s social media account. For example, in one case, a plaintiff sought private Facebook information to prove that a defendant who initially denied being the other driver in an accident was in fact driving the other car when the accident took place. The defendant avoided producing the information because in response to other pretrial discovery, he admitted being the driver.
Some courts have determined that an opposing party must make an initial showing that there is information in a plaintiff’s public Facebook profile that cuts against the plaintiff’s claims. If the profile is fully private, but the other side has a witness who has actually seen posts related to the injury, courts may compel production.
However, other courts have recognized that a social media account permits a user to craft a particular image of him or herself and that outside observers can get the wrong idea about the plaintiff’s actual life from looking at his or her posts. In a federal case, Giacchetto v. Patchogue-Medford Union Free Sch. Dist., a court explained that you cannot be required to turn over all private parts of your profile only because you have made public postings that undermine your claims. You can be required to review the private part of your profile and produce what’s relevant to the defendant’s discovery requests, however.
In another solution to this new discovery problem, a Pennsylvania court recently required the plaintiff to turn over access to a Facebook profile to a neutral forensic computer expert. The expert reviewed the private material and found the relevant materials.
This is an area that is still developing and on which Maine law is not yet settled, although our office will continue to monitor developments on behalf of our clients. If you are injured in an accident, contact the Maine personal injury lawyers at Briggs & Wholey, LLC by phone or via our online form for a free consultation.
More Blog Posts:
Study Claims Drivers in Maine and Across the U.S. Are Distracted More Than They Realize, Maine Personal Injury Lawyers Blog, June 13, 2013
One Hurt in Negligent York County Traffic Wreck, Maine Personal Injury Lawyers Blog, June 7, 2013