Hate to tell you, but I told you so! I previously blogged about the dangers of Facebook and similar social media for injured plaintiffs in New York personal injury lawsuits. I explained that, as a Central New York personal injury lawyer, I advise my clients to be very careful about what they post on Facebook and other social media sites. Why? Because insurance companies can, and will, search plaintiff’s Facebook page for evidence that he or she is not as disabled or in as much pain as claimed. They will look for Facebook comments, posts and photos depicting plaintiff as a happy, healthy normal person with no injuries. Never mind that the injured person is trying to put on her best face to the public, and never mind that some of those photos might be from before she was injured. I also advised that no one should think that the privacy settings on Facebook will prevent a determined insurance company from getting into his or her private posts and photos.
Now a New York Court has made a ruling ordering a personal injury plaintiff to give to defendant (more precisely, the lawyer hired by defendant’s insurance company) access even to her private postings (i.e., ones that plaintiff only allowed to be viewed by her Facebook “friends”) from Facebook and MySpace that could contradict her personal injury action claims. The same Court has ordered Facebook itself to disclose the entire history of plaintiff’s Facebook postings.
The judge found that the private pages were likely to lead to relevant information that might contradict plaintiff’s claims because some of the information on her public pages already displayed material that seemed to contradict her claims and deposition testimony with regard to her activities and enjoyment of life. In ordering the disclosure, the Court held that the private Facebook pages must be disclosed so as not to “condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings”
Facebook itself, which had been subpoenaed to produce the entire history of plaintiff’s Facebook pages, tried to quash the subpoena, arguing that releasing plaintiff’s profile without her consent would violate the federal Stored Communications Act, which bars Facebook from “producing a non-consenting subscriber’s communications even when those communications are sought pursuant to a court order or subpoena.” But the argument fell on deaf ears. The Court ordered that plaintiff had placed her physical condition in controversy by bringing the lawsuit and could not “shield from disclosure material which is necessary to the defense of the action.”
Moral of the story? Always listen to my advice! Second, and more to the point, be careful about what you post!
Email me at: firstname.lastname@example.org I’d love to hear from you!
Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyer Michaels & Smolak, P.C.