Legal Trends in Discovery of Social Network Information in Personal Injury Litigation


January 19, 2012

Recent cases are developing an increasing focus on personal injury litigation concerning discovery and social media accounts.

Last year a New York appeals court denied a motion to access information on Facebook about a plaintiff who claimed physical and emotional damages. In the case, McCann v. Harleysville Insurance Co., the judge called the attempt to obtain the evidence a "fishing expedition." The judge ruled that the defense failed to establish facts that substantiated how the evidence obtained would be relevant to the case.

In another case earlier in the year, the New York Supreme Court ruled the opposite way and permitted discovery of an injury victim’s social media information. In the earlier case, the injury victim brought a personal injury lawsuit against a chair manufacturer after she fell off the chair in her workplace. Her lawsuit alleged that she sustained permanent injuries that affected her "enjoyment of life."

The defendant claimed that public information that was available on Facebook showed that the plaintiff was in fact still "enjoying her life" and that the information should be allowed into discovery. The judge ruled in the defendant's favor and allowed information from the plaintiff's Facebook and MySpace accounts to be obtained in discovery. The court found that the defendant's need for the information outweighed any privacy concerns. Even the information from the “private” areas of the injury victim’s accounts were made available in discovery.

Discovery and Social Media

The court does seek balance in terms of social media discovery that is requested in court cases and will protect a party when the requests seem out of line or too much of a burden to the party receiving the request. The party requesting the evidence must give a reasonable explanation of why the information it is seeking will lead to the discovery of relevant evidence. If the defendant doesn't have a reasonable explanation as to why the requested social media material is relevant to the case, then access will not be granted.

Collection of Social Media Information

Already different states have different opinions when it comes to the issue of access and use of social media evidence. There are different ways that an attorney can use to collect social media evidence:

  • Get the data directly from the user through the discovery process
  • Include a social media release in document requests and provide the signed release to the social media site when requesting the other party's data
  • Capture the data by printing PDF files or capturing it on video -more time consuming, but sometimes the only option

The plaintiff’s attorneys as well as the defendant’s can use social media. Both sides in a case will want to plan and assume that if there is information relevant out there to the case that collection will be attempted.

The Future of Social Media in the Courtroom

There is no question that discovery for social media material will continue to be pursued for use as evidence in personal injury cases. People need to be aware that the data in their personal social media accounts, even the areas marked "private", may be accessed and used against them in their personal injury lawsuit under certain circumstances. The use of Facebook and other social media accounts in discovery will most likely be determined on a state-by-state basis. Attorneys who want this type of information are going to need to explain why it's likely to be relevant to the specific claim at issue in the case.

The experienced Atlanta personal injury lawyers at Montlick and Associates, Attorneys at Law, advise their clients to stay away from their personal blogs and social media sites in the wake of being injured in an accident. Any pictures or content that could portray the plaintiff in a negative light should be pulled down from social media sites. However, it is not enough simply to pull the information down from one’s own social media site. The plaintiff also should have all online friends purge the plaintiff from their accounts. If a plaintiff’s photo is tagged, it is still accessible by searching.

At Montlick & Associates, Attorneys at Law, our Atlanta, experienced GA personal injury lawyers have been representing those injured or killed in accidents throughout the State of Georgia for over a quarter of a century. If you or someone you love has been involved in a serious accident, you should contact us today for a free consultation. We are available to assist clients throughout all of Georgia including, but not limited to, Albany, Athens, Atlanta, Augusta, Columbus, Dalton, Gainesville, Macon, Marietta, Rome, Roswell, Savannah, Smyrna, Valdosta, Warner Robins and all smaller cities, towns and rural areas in the state. Call us today for your free consultation at 1-800-LAW-NEED (1-800-529-6333), or visit us on the web at www.montlick.com. No matter where you are, we are just a phone call away and we will even come to you.

Category: Personal Injury

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Many of our blog articles discuss the law. All information provided about the law is very general in nature and should not be relied upon as legal advice. Every situation is different, and should be analyzed by a lawyer who can provide individualized advice based on the facts involved in your unique situation, and a consideration of all of the nuances of the statutes and case law that apply at the time.