Doug Marcello
The prevalence of social media is indisputable. When there has been an accident, social media is an important litigation tool. Here are some key considerations:
- Check it early and often.
- Accidents grab attention, so claimants may post about them long before considering litigation, providing both information and material for a defense attorney to cross-examine or impeach.
- Updates and comments may be added or removed at any time by the claimant and others.
- So, what are you looking for?
- Anything related to this accident
- Anything related to prior or subsequent accidents and injuries
- Anything related to the claims being made, for example:
o If the plaintiff is claiming a loss of income or earning capacity, look for any posts regarding income, work, or job prospects.
o If the plaintiff is claiming a loss of life’s pleasures, look for pictures and posts about vacations, travels, celebrations, etc.
o If the plaintiff is claiming an inability to do physical activities, look for content relating to their physical activities.
- Save it.
- Once claimants speak to an attorney, they will likely be instructed to make their social media private.
- Save or print content when you find it so it does not disappear forever – screenshots work well for this.
- Tell your drivers.
- Make sure drivers know to avoid posting ANYTHING on social media about the accident.
- Tell drivers to check their privacy settings regularly.
- Plaintiffs’ attorneys will look for anything they could show a jury that makes you look bad – even content that would seem irrelevant.
- While admissibility can be fought, it is better to not have it out there.
- Other key points.
- Never friend or otherwise reach out to plaintiffs to gain access to private portions of social media pages.
- Check for relatives or friends of the plaintiff who may post additional relevant content.
- Social media surveillance is cheap and can help to focus traditional surveillance if conducted.
- If the information that is accessible to the public suggests that there may be more relevant private content, some Judges may require production of that private content in discovery.
