Facebook is Fair Game

Can Facebook and other social media outlets be used in discovery in the face of a personal injury claim?  According to some judges, yes, Facebook is fair game.  Demanding login information in order to uncover something damaging is something defense attorneys have been trying to do for quite some time.  They argue that a smiling profile picture, taken and posted after an alleged injury, could potentially be proof that the plaintiff might not be in as much pain as they’re claiming.  A case in New York, Romano v. Steelecase, 2010, dealt with this exact issue.  The defendant cried, “Foul!” and did not believe the plaintiff’s claim of injury.  To him, her Facebook updates and photos told a different story.  The defense was granted access to accounts, including deleted content, to go fishing for more damaging material to discredit the plaintiff.

E-discovery is not a new practice, but these days, it seems like a new social media application is created as soon as you get comfortable with the current one.  It begs the question, what information is admissible and what crosses the line?  If you’ve got your finger on the pulse of the social media world, chances are, you not only have a Facebook account, but you Tweet regularly about your Pinterests and Instagrams that you StumbleUpon as you Tumble through MySpace.  If that’s the case, your cyber footprint spans the social media galaxy, and certain judges have decided that updates and posts can be discoverable.  The main justification for this is the belief that social media users publish certain things, both generic and personal, with the intent that those posts circulate the Internet.

Before you object, not everything is admissible.  Judges have begun challenging the defense to be more specific in their requests for information.  In order to gain access to accounts, they must be able to show that the plaintiff is acting in such a way that contradicts their alleged restrictions, disabilities, and losses.  Believe it or not, the court is not interested in sifting through all the nonsensical status updates, food pictures, and GIFs of cats in the hopes that they might uncover something that is relative to the case.

With everyone and their brother informing the world of their latest conquests – “in 140 characters or less” -- the amount of information stored in the digital world is overwhelming.  And when an overzealous attorney is given access to this rabbit hole, the court gets stuck rifling through all the foolishness unrelated to the case.  A blurry picture on a third-party’s Facebook wall of someone that looks a little like the plaintiff standing near what looks to be something that could possibly, maybe, potentially contradict their claims to injury is not something to discover.

If you find yourself in the middle of a personal injury claim, think twice before you post a picture of yourself bungee jumping in New Zealand.  Facebook is fair game.