Social Media: What You Say Can (and Probably Will) Be Used Against You

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In 2008, Rane Zimmerman was injured while operating a forklift at Weis Market’s warehouse in Milton, Pennsylvania. When he sought damages for the injuries caused to his leg, the defendants sought access to private portions of Zimmerman’s privacy-protected social media accounts, arguing that they contained content relevant to the case. In 2011, the Court of Common Pleas of Pennsylvania ruled that the defense had a right to discovery, and granted them access to the non-public portions of Zimmerman’s Facebook and MySpace pages. “Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit…the courts should allow litigants to utilize ‘all rational means for ascertaining the truth…[and] access to those sites should be freely granted.”

Time and again in personal injury cases across the country, the defense has sought and been granted access to the private portions of the plaintiff’s social media pages. Their goal, of course, is always to show that the plaintiff’s injuries aren’t as severe as claimed. The defense works for big insurance companies, and insurance companies make money by denying claims. It’s nothing personal to the CEOs; it’s just business.

To most of us, social media is, well, social. Facebook is where we keep up with our cousins and old college and high school friends. It’s where we complain about the weather, share the special events and celebrations with our family and friends, and (when we’re bored- not that I’m admitting to it) take silly quizzes that tell us what our “real” age is.

Maybe you’re on Instagram because you love animals, and you discovered #dogsofinstagram—and the next thing you knew, you found yourself posting pictures of your weekend on the beach with your best friends, or the New Year’s Eve party you went to with your wife. Or perhaps you’re on Twitter because you love keeping your finger on up-to-the-minute news, or like following celebrity tweets.

And all of that is fun- and there’s nothing wrong with it…unless you’re involved in a personal injury claim.

I tell every client of mine to stay off of social media- both their own and their friends. Even if your page is private, maybe your friend’s isn’t—and if your friend tags you in a picture where you’re doing something that looks like you’re not as injured as you claim, I can promise you a defense attorney will find it. It won’t matter if that was your best day in 3 months, or if you spent the next week in bed- the picture of you dancing at your friend’s wedding (or laughing at a beach bonfire, or doing anything, really) will be used to try to diminish your injury claim.

Not only do you have to be careful about pictures, but you also need to be mindful of the location option on social media. If you put something on Twitter about something innocuous- say, the results of the football game- but the location feature shows you in Atlanta (when you live in Tallahassee), the defense attorney will try to say that you must not be injured if you were able to travel.

No, it’s not fair. It doesn’t seem right that you have already suffered an injury, and now have to suffer the indignity of having your activities picked over by a defense attorney. It’s not. But those are the rules, and we have to follow them—or live with the consequences.

The next time you post something on Facebook- whether or not you have been injured- remember that nothing on the internet is ever really private. Think about whether you would want your tweet or picture shown in a courtroom. If the answer is no, then don’t do it. As my mother told me when I was growing up, you can’t regret something you didn’t say.

Or post on Facebook.