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Social Media Use During Litigation

These days, almost everyone will have a social media account during their lifetime. Consequently, social media has found its way into almost every part of modern life, including the courtroom. This is one reason why it is extremely important to monitor your social media accounts, especially if you are involved in litigation. Our team at Garmer & Prather can guide you through every step of your personal injury case, including how to handle your social media accounts.

The expression that, once something is on the internet it is there forever and anyone can find it, holds true for litigation purposes, too. You should assume that opposing lawyers and witnesses will look for your social media profiles. You should also assume members of the jury will explore your social media accounts, too.

At times, social media can be detrimental to your case, even if it was a seemingly harmless or unrelated status update or post. Consider this: You are involved in a case and are claiming serious lower back injury from a recent automobile collision. You probably know that you should not post about the owner of the vehicle that rear-ended you. However, last weekend you posted a photo of you and some friends enjoying a hike at a local nature trail. This seemingly innocent post can be misrepresented or misinterpreted by opposing counsel or a juror. They may not know that your physical therapist encouraged you to exercise to control your pain. They may simply conclude that the injuries you claim were not realistic.

So, what should you do? Most importantly, refrain from explicitly talking about your case on your social media accounts. It is important to know that opposing counsel may ask for copies of your social media activity during your case. As long as it is relevant and not privileged information, that information must be turned over to them. This introduces a second important tip: keep your accounts private. While this will not prevent opposing counsel from being able to request access to it, it will mean that only you and your attorneys will know about the contents of your social media accounts before they are disclosed. This will also allow your attorneys to know what the other side has and plan accordingly, so that there are no surprises during trial. If a juror, opposing counsel, or witness cannot see your account activity by doing a basic search of their own, then it makes it harder for them to be able to use that information against you.

It is also critical that you do not delete a post or account once litigation has begun. Since social media activity can be obtained by your opponents, as discussed above, deleting posts or accounts may be considered destroying evidence. As you might expect, the destruction of evidence is a serious violation of court rules, and the penalties can be severe.

Keep your accounts private, do not talk about your case online, and do not delete any posts or accounts. Expect opposing parties to use your social media content to learn more about you and to gather any facts that may be relevant in their case against you. A good rule to follow is: If you do not want your opponent to see your posts on social media, then it is best that you do not post about it.

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