Social Media's Emerging Role in Personal Injury Litigation

Social media has impacted virtually all aspects of today's society and the legal profession is no exception. In the context of personal injury litigation, social media websites often contain a treasure trove of information for defense counsel concerning the nature and extent of injuries being claimed by a plaintiff. Where information posted on social media is made publically available, it is "fair game" and may be utilized by defense counsel accordingly. Fawcett v Altieri, 38 Misc 3d 1022, 1027 [Sup Ct 2013]. The more difficult is whether, and under what circumstances, a plaintiff can be compelled to disclose information contained on his/her social media accounts when that account is considered "private" or intentionally restricted to a limited audience.

In order to obtain access to closed or private social media accounts by court order, a party must demonstrate a good faith basis that their adversary has posted information or photographs that are "relevant and material" to the issues in the particular case. The question then arises as to how a defendant can establish a sufficient good faith basis for making the disclosure request in the first instance.

In personal injury actions, this burden can be met by showing that public portions of the plaintiff's social networking account contain material that tends to contradict a plaintiff's claimed restriction or limitation arising from his/her physical injuries. Patterson v. Turner Constr. Co., 88 AD3d 617, 618 [1st Dept. 2011]. The Courts have further determined where public portions of a plaintiff's social media account(s) contain information relating to the plaintiff's activities, restrictions, disabilities, and enjoyment of life, that information alone might be sufficient to compel disclosure of the private portions of those same social media account(s). Romano v. Steelcase Inc., 30 Misc.3d 426 [Sup. Ct., Suffolk County 2010].

Once this factual predict has been met, the Courts are somewhat divided as to whether defendants are entitled to: 1) full disclosure of the plaintiff's social media account; 2) only those portions generally relating to the plaintiff's physical and mental condition; or 3) strictly limited to information that directly pertains to the claimed injuries arising from the accident. Decisions coming out of the First and Second Departments appear to be trending in favor of broad disclosure, while the courts in Third and Fourth Departments seem to be taking a more restricted approach.

No matter which side of the "v" you are on, it is important for attorneys to understand the potential impact of social media in the context of personal injury litigation. In particular, plaintiffs' attorneys need to caution their clients as to what information they post on-line whether or not it's intended for public consumption. In fact, plaintiffs should be counseled to deactivate their social media prior to commencing a lawsuit or, at the very least, enable all privacy settings to limit the possibility of accidental disclosure of information potentially harmful to their case.