A lot of our clients ask us what they should do with their social media accounts while pursuing their cases. Watch this video and learn why Smyrna personal injury attorney Darl Champion doesn't recommend shutting down your social media presence during a lawsuit.
Snapchat. Facebook. Twitter. Instagram. Every day, most of us capture some part of our lives or thoughts on one or more of these social media platforms. And, because social media documents a part of our lives, if you suffer harm or an injury and file a lawsuit, your social media could be used as evidence in that lawsuit. So, it is important for you to know what to do (and not do) with your social media during a lawsuit.
Why Does Social Media Use Matter?
The short answer to why your social media use and posts matter is those posts could be evidence in your lawsuit. Destroying any evidence, including social media posts, can severely harm your case, and may cause you to lose your case completely.
Once a lawsuit is filed, each side begins a process called discovery. Discovery is a way for each side in the lawsuit to find out what information the other side has, both information that helps and hurts their case. This includes information on your social media accounts. If one side destroys (or deletes) information (evidence) that is relevant to the lawsuit, the other side can seek sanctions because of the spoliation of evidence. Spoliation of evidence is legalese for destroying or failing to preserve evidence when you know a lawsuit may be filed or a lawsuit has been filed.
Our court system depends upon each side in a lawsuit playing fair for the system to work properly. Because fairness is important, spoliation of evidence is a big deal. And because it is a big deal, the sanctions (or, to use another word, punishment) for destroying evidence can be severe. Your case could be dismissed. You could be fined. Or, the judge could give the jury an instruction to act as if the destroyed evidence had been presented and that evidence was damaging to your case. (This is known as an adverse inference instruction.)
The case of Heather Painter gives a good example of what can happen to your case when you delete social media posts. Painter filed a sexual harassment lawsuit against her boss. During the process of filing the lawsuit, Painter deleted all of her Facebook posts about her boss and her job. Because Painter was Facebook friends with her boss’ wife before the lawsuit, Painter’s boss knew she had a Facebook account and had commented about her job on Facebook. The lawyer for Painter’s boss asked for those Facebook posts as evidence that the work environment was not as bad as Painter claimed in her lawsuit. But because the posts were deleted, that evidence no longer existed.
Though the court could have dismissed Painter’s case as sanctions for destroying the evidence, the judge chose a less severe sanction. The judge ordered that an adverse inference instruction be given at trial, meaning the jury would have to assume the deleted posts would have helped the defense.
What Should You Do with Your Social Media Before or During a Lawsuit?
- Don’t delete anything! A good lawyer can work to lessen any harm your past social media posts might cause your case. Deleting posts, pictures, etc., could harm your case in ways no one can fix! (For instance, if your claim is dismissed by the court with prejudice as a sanction for deleting Facebook posts, you would never be able to seek compensation for that claim again.)
- Assume anything you post could end up as evidence in court. Social media posts can be used against you in ways you may not even imagine. For example, a photo of you out with friends may seem innocent, but the insurance company will likely use it against you to say you clearly cannot be in that much pain if you are able to enjoy a night out with friends. If you have any concerns, just cease your social media activity until your case is over. If you do continue to be active though, just be very careful and think before you click the post button.
- Use privacy settings to limit what can be viewed by someone who is not your friend. Be careful about accepting friend requests from people you do not know in real life because fake profiles can be used to obtain information only friends have access to.
- Do not assume a message sent through Snapchat actually disappears. Screenshots can be captured and used as evidence. In recent years, murder and sexual assault cases have been proven because someone saved a screenshot of a Snapchat message and those screenshots were used as evidence. Treat Snapchat the same way you would Facebook, Instagram, or Twitter. If the content of a message could hurt your case, don’t send it.
Suffering an injury can take many things away from you. It does not have to take away your use of social media. But, you need to be wise in how you use it. And, when you need counsel to help you navigate life after an injury, we are here to help.