As a longstanding NY personal injury lawyer, I have seen my clients’ right to privacy disintegrate over the years. And just when I thought it could not get much worse, it got worse. Let me tell you about it.
First, though, a little background. When you sue for personal injuries, you give up some of your privacy. The insurance company lawyer has a right to pry into your medical records, at least to the extent they are relevant to the injuries you are claiming from the accident. So if you are claiming a broken right arm, for example, they have a right to scour through any medical records related to your right arm, whether from before or after the accident. But they would not have the right to look at records for treatment unrelated to that arm. You don’t give up all your privacy, just that much of your privacy that is related to the injuries you are claiming.
Now, if you are claiming that your injuries have hampered your lifestyle – as they often do – and that you can no longer do certain things you used to do, the insurance company lawyers can try to uncover evidence that you are either lying or exaggerating your disability. For example, they can have investigators secretly trail you and try to catch you – on camera – performing activities you claim you can’t do.
But how far can they go in trying to uncover your alleged lack of honesty about your claim? Can they dig into your “privacy setting” Facebook postings, for example?
Almost a year ago, a case known as Forman v. Henkin came out of New York State’s highest Court. The case was about a plaintiff who suffered spinal and traumatic brain injuries resulting in cognitive deficits when she fell off defendant’s horse. She alleged that her activity level had drastically decreased because of the injuries she suffered in the accident. Upon the insurance company lawyer’s insistence, and over plaintiff’s NY personal injury lawyer’s objection, the New York’s highest Court ordered her to disclose private photos of herself she had posted on Facebook using privacy settings. The Court held that those photographs might be “private” as far as Facebook was concerned but not as far as the New York State personal injury law was concerned. Because those photos might show that her post-accident lifestyle was more active than she was claiming, the Court ordered her to disclose them. The Court was not impressed with plaintiff’s argument that the “private” portion of her Facebook account should be accorded, well, privacy.
So after Forman v. Henkin lifted the veil of privacy for social media private-setting posts, my message to my clients was, Beware: Your “privacy setting” postings are not “private” in an injury lawsuit. Be careful what you post. Even if you just post a private picture of yourself smiling, the insurance company can probably get it and argue that you can’t be experiencing any pain and suffering because, well, you are smiling. Everyone knows that people in pain never smile, right?
Forman v. Henkin was bad for my privacy-concerned clients. But now it has gotten worse. In a recent First Department Appellate Division case, Vasquez-Santos v. Matthew, the accident victim used to play semi-professional basketball but alleged that the accident disabled him so that he had to give it up. The defense/insurance company noticed, however, that his Facebook page had a few pictures – posted after the accident — of him playing basketball. He did not post those pictures. His “friends” had “tagged” him in them – and also texted them to him. Plaintiff claimed the photos, though “tagged” to him after the accident, were actually taken before the accident.
The insurance company lawyer was not buying it. He asked the Court to allow his expert to actually sift through plaintiff’s devices (cell phone, tablet, etc.), where the photos now resided, to study the meta-data and determine when the photo was shot. Defendant also wanted the expert to have access to any other post-accident photos, videos or texts or posts where plaintiff even discussed basketball or similar activities. Plaintiff’s NY personal injury lawyer cried “foul”! But the Court cried, “We’ll allow it!”
And NY personal injury lawyers State-wide just plain cried.
New York personal injury victims, be prepared to give up your smart phone’s pass code to that insurance company lawyer. With recent Court rulings, you should expect that anything you type or anything you post or any pictures or videos you shoot from your phone or other device can be “captured” by the insurance company to try to torpedo your case. Your privacy is gone! The courts are now justifying such an unprecedented invasion of privacy on the grounds that anything the accident victim says or posts after the accident might possibly belie his or her claims about how the accident has limited his or her activities.
And by the way, I don’t necessarily believe these court decisions are totally wrong. After all, some accident victims (not mine of course!) do lie or exaggerate their injuries. And in fairness the other side ought to have some kind of opportunity to ferret out the liars, malingerers and exaggerators. The problem I have is that I don’t think the courts are properly balancing the plaintiff’s right to privacy with the insurance company’s right to challenge his or her honesty.