In our personal injury practice, we strongly urge our clients not to use social media to post any messages or images that could be interpreted against their interest in litigation. Recently, on the legal blog Lexology, tort defense attorney William A. Ruskin outlined the steps that defense counsel must take to use the discovery process to compel plaintiffs to make social media disclosures that could compromise their case.
Mr. Ruskin cites the 2015 case of Forman v Hankin, where the Appellate Division of the Supreme Court of New York, First Department, set standards for defense counsel seeking social media disclosure. In Forman, the plaintiff claimed brain injury left her unable to write or communicate effectively. Defense argued that since any social media postings would potentially contradict that claim, they should be able to subpoena all social media posts. The First Department disagreed and presented guidelines for accessing social media posts through discovery. According to Mr. Ruskin’s analysis:
- The defendant must establish a prima facie showing of relevancy. The defendant’s request must be narrowly tailored to avoid the appearance of a fishing expedition. Mr. Ruskin suggests defense counsel limit their requests to social media conversations about the claimed injuries.
- The defense must establish that certain social media postings contradict the plaintiff’s case. This is a difficult standard, because it requires the defense to show evidence of what they are looking for before they are allowed to see it. The trick is for the defense to find a compromising post that is publicly available and use that evidence to petition the court for access to posts with restricted privacy settings.
- Defense counsel must send a preservation letter to plaintiff’s counsel. This would prevent the plaintiff from altering privacy settings to remove publicly shared images and posts from view or taking down previously posted media.
With all this in mind, what do personal injury plaintiffs need to know about social media? First, the ruling in Forman may not hold. The First Department order gave significant protections to plaintiffs, but the dissent stated that “the topic is too new to warrant rigid adherence…of stare decisis.” Inevitably, the law will change, and the next opinion could swing in favor of the defense. Second, plaintiffs should be aware that even completely innocent postings could be interpreted against their interests. Snapshots only take a second, but they create a lasting impression. You may have smiled once in the last six months while struggling every day with debilitating pain, but if that smile was for the camera, that’s what the jury might remember. Our advice is to make minimal use, if any, of social media until your litigation is over.
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