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Can the Defendant in a Personal Injury Case Demand to See My Private Facebook Account?

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We live in a culture where it is now common practice to share every aspect of our lives on social media. Many of us have online-exclusive “friends” who follow us on Facebook, Twitter, Instagram, and similar platforms. But if you are involved in a car accident or another event that leads to a serious personal injury, you may need to rethink your social media habits, as anything you post may be used against you in court.

Discovery in the Age of Social Media

The critical thing to keep in mind is there is no legal privilege for social media accounts, even ones where you are able to restrict access to certain individuals. In other words, a “private” Facebook account may still be subject to civil discovery by a defense attorney. So if you file a personal injury claim alleging you were hurt in a car accident caused by the other driver’s negligence, the defense can ask the judge to look at your restricted social media accounts.

How would that be relevant to the case? Well, if your lawsuit claims you were unable to engage in strenuous physical activities following the accident, but your Facebook account shows a picture of you rock-climbing two days later, the defense would probably have the right to see that image. The mere fact you only chose to share the picture with your Facebook “friends” does not necessarily prevent the defense from seeking it in discovery.

For example, New York State’s highest court recently addressed this exact issue. The defendant in a personal injury case sought a discovery order compelling the plaintiff to produce her entire “private” Facebook account, which she had deleted following the accident. The New York Court of Appeals said that while it “rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable,” some posts may be subject to discovery if the trial court determines they are relevant to the case. Here in Tennessee, courts apply much the same reasoning.

Preserve, Do Not Destroy Potential Evidence

Some people assume the best way to prevent the discovery of embarrassing social media posts is to delete their accounts immediately following an accident. But this route has potential legal perils as well. The defense may argue you tried to intentionally destroy evidence, which can lead to judicial sanctions, including premature dismissal of your case.

But it is probably a good idea to refrain from posting anything new on your existing social media accounts while you are involved in litigation. You do not want to give the defense any ammunition that might undermine your case, even inadvertently. Ideally, you need to treat your Facebook and Twitter accounts like any other potentially discoverable evidence: preserve and do not destroy.

You should also engage the services of a qualified Knoxville personal injury lawyer as soon as possible following an accident who can advise you of the best steps to take to preserve a potential claim. Contact the offices of Fox & Farley, Attorneys at Law, at 866-862-4855 if you need to speak with someone right away.

Source:

nycourts.gov/ctapps/Decisions/2018/Feb18/1opn18-Decision.pdf

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