Courts have held that information that a personal injury plaintiff posts on their Facebook page and other social media sites, even if posted privately to friends, may be discoverable in your lawsuit if the opposing party requests it. However, the production of such information from a plaintiff’s Facebook page and other social media sites would likely be limited to information, photographs, and/or videos related to the plaintiff’s accident, related to injuries suffered as a result of the accident, and related to damages and/or expenses incurred as a result of the accident. Examples of the types of social media postings that a court may order the plaintiff to produce include the following:
- postings by the plaintiff that refer or relate to the accident in question;
- postings that refer or relate to emotional distress that the plaintiff alleges he suffered as a result of the accident and any treatment that he received;
- postings or photographs that refer or relate to alternative potential emotional stressors or that are inconsistent with the mental injuries he alleges;
- postings that refer or relate to physical injuries that the plaintiff alleges he sustained as a result of the accident and any treatment that he received;
- postings that refer or relate to other, unrelated physical injuries suffered or sustained by the plaintiff;
- postings or photographs that reflect physical capabilities that are inconsistent with the injuries that the plaintiff allegedly suffered as a result of the accident;
- postings that refer or relate to damages and/or expenses incurred as a result of the accident; and
- postings for the time period from the date of the accident to the present.
If you are a personal injury plaintiff, beware that what you post on any social media site may hurt your case. And once it is posted, your lawyer cannot advise you to alter, delete, remove, or in any way tamper with or cover up the posting because to do so would be a violation of Rule 3.4(a) of the Louisiana Rules of Professional Conduct, which prohibits a lawyer from unlawfully altering or destroying evidence and assisting others in doing the same. Lawyers and the parties are required to preserve electronically stored information, including social media postings, if the postings contain information relevant to the lawsuit. Further, failure to preserve social media postings could subject the lawyer and the party to a charge of spoliation of evidence and sanctions (such as an instruction at trial that the judge or jury may presume that the altered/deleted posting would have been unfavorable to the plaintiff because the plaintiff destroyed it).