Can Social Media Accounts Be Used Against a Plaintiff in a Lawsuit?
By Peter DeFilippis, Esq.
Defense discovery demands served readily during the course of personal injury litigation have caught up with the digital age. Attorneys defending against personal injury and medical malpractice lawsuits are now freely requesting printed copies of the Plaintiffs’ social media posts. They are asking for any and all comments or images uploaded on social media, medical or online forums relevant to the alleged incident or injury. Can they get away with this?
The questions are: is the mere possession and utilization of an online media account sufficient basis to inspect such usage or must the Defense first prove that the materials are factually relevant to Plaintiff’s claims thereby protecting against an invasion of protected privacy?
So far, more courts’ rulings seem to come down in favor of privacy interests and less in favor of the wholesale invasion of privacy. The Courts in New York are generally putting strict limitations on Defense requests for access to online activities which have no established basis in fact. According to the Appellate Division for the First Department, covering Manhattan and The Bronx, the contents of some “public” portion of the social media profile or disclosure by the Plaintiff during deposition have to indicate the online information contradicts or conflicts with Plaintiffs’ original claims. Arguing such material may lead to the discovery of relevant evidence is not enough to force the Plaintiff to make private account contents available to the Defense. Based on recent decisions, the Defense must first display relevance on this point using facts as keys to open the doors to further disclosures. It is not Plaintiff’s burden to prove irrelevance.
A Plaintiff’s participation in online platforms alone is not sufficient to compel the Plaintiff to provide the Defense with access to social media accounts or to have the court conduct a private inspection of the account’s usage. Defendants must first and foremost identify information in a Plaintiff’s Facebook account at odds with the alleged restrictions, disabilities, or losses to warrant this level of obtrusiveness. If the Defendants cannot first demonstrate the existence of these facts in the social media, the Court will not press the Plaintiffs to comply with the Defense request.
Arguments that Facebook postings or Twitter feed may potentially reveal daily activities contrary to Plaintiff claims amount to nothing more than baseless requests by the Defense to conduct a “fishing expedition.” Without facts to back up their demands, Defendants may find their attempts to access Plaintiff Instagram or other social media site content receiving the “thumbs down” from the courts.
At Peter DeFilippis & Associates, we aggressively fight to keep our clients’ private lives, just that, private. Being injured due to the negligence of another does not mean you should have to expose all the contents of your social media accounts to strangers. We insist that the Defense attorneys and Courts follow the letter and spirit of the law and not allow social media fishing expeditions at our client’s expense.
Consultations are always free and we do not get paid unless we recover money for you and your family. Contact caring, diligent and trustworthy counsel at 212-227-4001 or 914-478-7777.