Digital Discovery, Auto Accidents and Your Facebook

You are in an auto accident and the other party is at fault. Your injuries are permanent according to your physicians. As is all too often the case, you cannot receive reasonable settlement offers from the other party’s insurance company.

You sue the other driver to collect compensation for your injuries.

Now what?

Under Florida’s jury instructions, the court will typically instruct the jury that, besides out-of-pocket losses, you have the right to prove the following general areas of damages:

• Cost of medical treatment (both in the past and the future)
• Loss of or reduction in the ability to earn money
• Bodily injury
• Pain & Suffering resulting from the bodily injury
• Disability caused by the injuries
• Mental anguish
• Loss of the capacity to enjoy life (both in the past and the future)

You must present evidence that the other party (defendant) was negligent; that the defendant’s negligence caused your injuries; and you must prove the amount of your damages.

Conversely, the defendant has the right to present evidence he/she was not negligent; that the negligence, if any, did not cause any or all your damages; and your damages is unsubstantiated.

A part of the process in a lawsuit is to allow everyone to gather evidence is called “discovery”. During discovery, both parties may seek information from each other; as long as that information is likely to lead to the discovery of admissible evidence. It is not always essential that the discovery being sought be admissible into evidence; only that it lead to the discovery of admissible evidence.

It has become fashionable, if not axiomatic, that the defense attorney will seek the discovery of social media from plaintiffs in lawsuits. This discovery is often simply “boilerplate” for defense lawyers to request and sometimes they have no reasonable basis for their request. The areas of request typically include:

• Facebook pages
• My Space pages
• Blogs
• Twitter accounts
• E-mail accounts

The request may take several forms:

• Interrogatory questions asking about social media in general and the plaintiff in particular.
• Requests to produce printed copies of entire Facebook or blog sites.
• Requests to provide log-in information for Facebook, My Space and similar sites
• Third party subpoenas to internet service providers for e-mail, and other internet activity records.

The law in many states (including Florida) is only developing and trial judges are forced to find their own conclusions on discovery of social media issues.  While it is true that the defendant does have a right to discover documents, information, etc. that relates to the plaintiff’s claims, the defendant does not have the right to engage in fishing expeditions.   So the ultimate question is, will the defense lawyer get to look at the plaintiff’s Facebook page,  Twitter account or e-mail?

The answer is maybe. If the defense can present a reasonable basis to the court, then they probably will be allowed to discover this information. And, if you do not take steps to protect your privacy, it may not be all that hard for the defense to establish a reasonable basis.  For example, if the public portion of your social media site displays the plaintiff playing volleyball at a time period in which there is a claim of physical infirmity, the judge may grant access.

So, what should a plaintiff do?

Remember that everything you post on the internet may ultimately be placed up to public scrutiny; don’t post things you do not want the world to ultimately see.

If you come to see me for representation, I am most assuredly going to ask you about your social media sites; be completely honest with me and disclose everything. There is very practical advice I can give you and some legal actions we may be able to take in protecting personal, but irrelevant, data and information.

What I will NOT advise you is to destroy, alter or otherwise change any already existing information. Destroying or altering existing information is called “spoliation” and the penalties for “spoiling” evidence are severe and could cause you to lose your cause of action altogether.

As the use of social media continues to grow, the Courts will do their best to interpret when, or under what circumstances, the plaintiff’s social media is discoverable under Florida. Unfortunately, it seems that technology changes with a faster pace than the law is able to keep up.