In a recent case in Florida involving injury to a child, the defendant requested that the child's mother produce her Facebook postings and "likes" regarding:
- her relationship with her child and each of her other children
- her relationship with other family members
- her mental health.
One of the defense attorney justtified the request this way:
These are all things that we would like to look under the hood, so to speak, and figure out whether that's even a theory worth exploring.
The trial court granted the request but the appellate court reversed, saying:
- social media is discoverable
- it has to be relevant to the claim and likely to be admissible
- it cannot be a fishing expedition.
Here are some rules to live by if you have a personal injury claim pending:
- expect that anything you post on the Internet will be subject to discovery
- don't be stupid about things.
It's not the fact that people engage in activity while pursuing an injury claim that is harmful to the claim, its the fact that people LIE about their activity level.
If you claim you have back pain, probably better to not get caught hitting golf balls, going skiing, or doing summersault on a trampoline.
If there is something out there that is unflattering don't think you can get away with just erasing it or not producing it. Look what happened in one case where the lawyer told his assistant to not produce the Facebook posting.
The Florida case is Root v. Balfour Beatty Construction, LLC