Attorneys Using Social Media as Evidence in Personal Injury Claims

For many, Facebook, Twitter and Instagram are as much a part of their lives as a phone, computer or even a car. Most don’t think twice about posting pictures, messages and other information for the world to see. But if you have been injured because of someone else’s carelessness or negligence, especially in New York, you may want to give some serious thought to how actively you post to social media sites. Here’s why:

The phase of a trial during which the parties gather evidence is known as “discovery.” The state of New York has long had liberal discovery rules, requiring “full disclosure or all matter material and necessary in prosecution or defense of an action.” Under a 2011 ruling, a party in a civil lawsuit has a right to obtain evidence by any legal method that will “lead to the disclosure of relevant evidence or…reasonably…lead to the discovery of information that bears on the claim.”

So how does this relate to Facebook, Twitter and Instagram? Well, if you are a regular user of those social media sites, you know that you can set your own level of privacy, so that posts are only visible to certain people. Accordingly, you might believe that you retain that right of privacy with respect to attempts to gather trial evidence from your Facebook, Twitter and Instagram accounts. But that is not necessarily the case in New York.

In a 2011 appellate court opinion in New York, the court held that a Facebook post was akin to a diary, and found that posting could be discoverable, regardless of the privacy settings the user had. That’s not to say that anything you post on a social medial site will be broadcast to a jury. Typically, the judge will review all proposed evidence, including Facebook, Twitter, Instagram and other social media posts, to determine if they are relevant. If not, they typically won’t be allowed into evidence. But if they are, the user’s privacy settings will generally not preclude their introduction into evidence.

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