Posting on Social Media

Posting on social media after an accident can have a serious impact on your personal injury claim. Insurance claims adjusters and defense attorneys are looking for any way to minimize liability and decrease the amount they have to pay on your claim. Even seemingly innocent posts may be taken out of context and used to suggest you were not injured in the accident or that your injuries were not that serious. Your desire to reassure family or friends that you are recovering well after an accident, even though you are actually still taking medication to suppress severe pain from it, can be used to argue your pain and suffering is not as bad as you claim.

If your personal injury claim goes into litigation, setting your profile to private will not prevent the defense from seeing your posts. As part of what is called discovery, defense attorneys routinely request that a personal injury plaintiff download and produce all entries made by the plaintiff on social media about an accident. Many defense attorneys go even further and request that a personal injury plaintiff download a complete archive of their Facebook account for several years before and after an accident.

Discovery is very broad in civil lawsuits. The parties are entitled to information and documents that are either relevant, or are likely to lead to the discovery of admissible information.  There is as of yet little guidance from the Courts concerning to what extent the defense can compel production of social media in a lawsuit arising out of a personal injury accident. The cases discussing the issue have generally held that production of entire social media sites is not warranted as being overly broad, but do require a personal injury claimant to produce all relevant social media postings after an accident. Social media posts in which you discuss how an accident happened or your injuries from it are relevant to your claim for compensation for those injuries. So are posts where you discuss your involvement in physical activities that you claim your injuries negatively impacted.

The best practice is to avoid posting on social media from the time you are injured to the time your personal injury claim is resolved. At minimum, do not post details or updates about your physical and emotional condition, or any photos or videos. Do not post messages about trips or vacations, or responses to invitations to activities. Do not accept new friend invitations from people you do not know. Use the telephone (and not texts) to let your family and friends know how you are doing. And ask your family and friends not to “tag” you in any photos or mention the incident online while your personal injury claim is pending.