Lawsuits and the Internet

Injury victims must never forget that there is an entire industry of attorneys and insurance company claims department employees devoted to weeding out fraudulent claims. The way they accomplish that is by vigorously defending each and every claim and lawsuit as if it was fraudulent.

One current method being pursued is through statements injured parties make on the internet, whether in email messages, blogs, or posts on social media forums such as Facebook, Twitter, and Instagram. For example, during litigation, one specific municipal defendant generally requests: “Any and all social media or other electronic postings, blogs, conversations, photographs, tweets, feeds, comments, or websites authored by or concerning the plaintiff for the one year prior to the accident through the present date. If any portion of the foregoing has been deleted, please state form of the data, the subject matter, date, time and reason for deletion” and “All emails authored by or concerning the plaintiff, related to the subject matter incident, the plaintiff’s condition and/or the damages claimed.”

Now, just because a party to litigation requests something from another party doesn’t mean that it must be produced. A party responding to these requests has an opportunity to object, and the dispute can then be put before a judge for determination. To date, certain courts have refused to allow the production of these materials. See Ehling v. Monmouth-Ocean Hospital Service Corp., 2013 WL 4436539, (District Court of New Jersey, August 20, 2013); Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (Central District of California 2010). However, Illinois courts have not yet had an opportunity to weigh in, and there’s no guarantee that they will side with the courts refusing to order production of this information. In fact, a Cook County judge recently gave a speech to a continuing education forum indicating that she would order production of all of this material.

So how do you protect yourself from this intrusion into your privacy?

• Don’t use social media while your case is pending.
• If you must use social media, don’t discuss your injury, your lawsuit, and definitely don’t discuss how your injury happened.
• Also, be mindful that your comments and photographs may contradict your claims in the suit, i.e. vacation photos when you’re claiming loss of a normal life.
• Don’t accept friend requests / invitations to connect from anyone you don’t know.
• Set your privacy settings to only allow your family and friends to see your postings, and not defense attorneys or insurance claims professionals.

What if it’s too late and you’ve already posted before you’ve consulted with an attorney? Unfortunately, you’re stuck. If you delete the content you’ve posted, the court considers this destruction of evidence. The jury may be instructed to assume that the content you posted was harmful to your case, regardless of whether it actually was. Courts don’t treat destruction of evidence kindly.

Remember, everything can be intentionally misconstrued if someone really wants to. You may have been sedated on pain killers for the entire miserable one-hour bumpy car ride to the Indiana Dunes and your therapist may have even recommended aquatic therapy, but when you’re at trial, you don’t want a defense attorney showing the jury pictures of you holding a piña colada on the beach moments after your attorney asks them to award you tens if not hundreds of thousands of dollars for your suffering.