Yes! Social Media Can Be Used in Court!
Yes, it can. Social media is everywhere. There are some prevalent social media sites and apps such as Facebook, Instagram, Twitter, and even LinkedIn. By the time you read this or might even be three or four new ones that popped up that you may have joined. For our clients, social media can be dangerous. The other side’s insurance company and defense attorneys desperately want your posts if you have been injured or are making a claim. They believe that your posts will contradict your claim or show that you are exaggerating your problems.
There are several right ways and a wrong way to protect against the insurance company and defense attorney searching your social media.
Let us start with what you are NOT allowed to do. NEVER delete anything from social media, including accounts, photographs, or posts. Then they will accuse you of destroying evidence. Do not imitate the plaintiff that “cleaned up” Facebook and was sanctioned $180,000 in Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013), https://scholar.google.com/scholar_case?case=12929440551591006221&q=Allied%09Concrete%09Co.%09v.%09Lester&hl=en&as_sdt=40006.
The Court sanctioned Lester’s attorney because they participated in the destruction. Do not make the same mistake that they did.
But what should I do about social media if I have a case?
There are several steps that you should consider. One is to stop posting. It is that simple. If you do not post, they have nothing.
After that, you can set everything private. Make sure the settings only let people of your choice from seeing your posts and pictures. Adjust your settings so that social media will let you know if somebody tags you. Also, control access to your profile and not allow new friends or followers unless you know them in person.
A follower or friend request could show a picture of that attractive man or woman trying to connect. But it is a private investigator using that profile picture to trick you into allowing them into your social media. This protection is not complete because sometimes investigators can access your profile through friends’ accounts or other tactics.
The next effective way to prevent a problem is to be truthful about your life and damages. Do not deny being able to travel when there are pictures of you traveling. Do not deny being able to play a sport when your profile shows you playing a sport. You get the idea. The problem is that even if you are truthful (which we require), they can still use posts and pictures against you.
We get it. Many people want to maintain their accounts. Even if you do not post regularly and are a lurker to see your friend’s and family’s updates, you still want to keep that connection with others. There’s nothing wrong with that. Where social media can harm your case is when there are pictures of you or posts by you. If you want to maintain your social media, just set everything private as long as you do not destroy or delete anything.
What is social media discoverable?
Under Florida law, social media is discoverable. Often, it is up to the judge to the extent that it is discoverable.
The most crucial Case in Florida is Nucci v. Target Corp., 162 So. 3d 146 (Fla. 4th DCA 2015). https://scholar.google.com/scholar_case?case=12605778203700828790&q=nucci+v+target+corporation&hl=en&as_sdt=40006. That case involves a personal injury claim made against Target. In Nucci, Target wanted to obtain Facebook photographs of her two years before the incident. Target was suspicious because they established that some pictures were missing from the account. The 4th District Court of Appeal upheld the requests that asked for:
- “1. For each social networking account listed in response to the interrogatories, please provide copies or screenshots of all photographs [of the plaintiff] associated with that account during the two (2) years prior to the date of loss.
- For each social networking account listed in the interrogatories, provide copies or screenshots of all photographs [of the plaintiff] associated with that account from the date of loss to present.
- For each cell phone listed in the interrogatories, please provide copies or screenshots of all photographs [of the plaintiff] associated with that account during the two years prior to the date of loss.
- For each cellular phone listed in response to the interrogatories, please provide copies or screenshots of all photographs [of the plaintiff] associated with that account from the date of loss to present.”
We see these requests citing this language all of the time. Our law firm has successfully limited the Defendant from getting other people’s posts, likes, followed pages, and additional irrelevant information. But the risk to your case is there because they can get photographs of you and your posts.
How is social media used in Court?
Defendants use social media to attack your credibility and claim for damages. They will blow up a picture of you smiling at a loved one’s wedding. They will take that picture out of context and ask the jury whether that is the face of someone with pain. It does not matter whether you took pain medication. It does not matter that you mustered the courage to smile that one moment even though you were miserable that whole night. They will portray that one moment as “proof” that you are not hurt. Unfortunately, some jurors will ignore your explanation that the picture does not accurately reflect your day to day life. Some jurors will believe that a picture is worth a thousand words and not dive deeper into their understanding of what you are going through. Social media can damage your case in another way; We have all had emails, texts, or pictures misinterpreted by other people. Defense attorneys will comb through and twist any photographs or social media posts that you make. It is vital that you take a social media break during your claim to minimize the risk of insurance companies or defense attorneys taking your posts out of context.
Even joking around with a friend on your wall or a sarcastic comment can be misinterpreted. For instance, if a friend posts, “I have not seen you that crazy as you were last night. “You may reply, “Yeah, I know! I
partied all night!” If that friend were sarcastic and you were too, because you sat quietly and were not yourself, that would be twisted and used against you. The defense attorney might try to use it to contradict your claims that you are injured, hurt, or lack energy.
If you take away anything from this post, you should not delete any posts or pictures. Also, be truthful about your life. Next, do not upload or post on your social media. If you cannot stop, at least make everything as private as possible. Contact Dyson & Levy at 561-498-9979 if you need legal advice about social media or any other legal issue.
If you need Legal Consultation or feel you’re being misrepresented. Call Dyson & Levy Today (561) 498-9979