Social networking has become common-place in our personal lives, but what is far less certain is how the law treats what we post online—particularly in claims for personal injury.
In November of last year, the New York Court of Appeals in McCann v. Harleysville Insurance Co. denied a defendant’s motion to access the private Facebook page of a plaintiff who was claiming damages in a personal injury action. The judge reasoned that the defendant “failed to establish a factual predicate with respect to the relevancy of the evidence,” and stated that the request was akin to a “fishing expedition.”
The Harleyville decision was in contrast to one that the same court handed down just two months prior. In Romano v. Steelcase Inc., a judge determined that a defendant was entitled to access the private Facebook and Myspace pages of a plaintiff claiming injuries because the plaintiff’s contention that she was confined to her house and bed was contrary to the publicly viewable profile picture on her page in which she was smiling outdoors. The Romano court reasoned: “[I]n light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.”
Of course, the profile picture that the plaintiff in Romano had posted could have been one taken before the date of her accident, or taken during a brief period in which she was feeling well. What constitutes a “factual predicate,” as alluded to in Harleyville, is no more clear here than there. And for this reason, the law in New York remains uncertain.
Here in California, the law is possibly more confusing. In Moreno v. Hanford Sentinel, Inc. a judge granted the defendant access to the plaintiff’s Myspace posts even though the plaintiff had deleted them from her page immediately following their publication. The court seemed to rely on the fact that the original post was publicly viewable, stating: “A matter that is already public or that has previously become part of the public domain is not private.”
This year, however, a California district court quashed a defendant’s subpoena seeking to access information from Facebook and MySpace pursuant to the Stored Communications Act. Specifically, in Crispin v. Christian Audigier Inc., the court likened facebook posts to email and afforded them similar protections under the Act.
Although the law regarding discovery of social networking communications remains unsettled, one fact is absolutely clear: making any public communication bearing on your health or injuries, however private you assume it to be, is a mistake when proceeding with a personal injury claim. Accordingly, if you have been in a traffic accident or sustained personal injuries of any other kind, refrain from discussing your case with anyone other than close family. It is easy to take a single comment or picture out of context and the harm it can cause to your credibility can be substantial.
Why should you retain Phillips & Associates?: Each personal injury case we take on recieves 100% of our personal attention. We are always accessible to talk about questions or concerns you may have regarding your case, and it is this commitment to client service that has earned us the stellar reputation as a plaintiffs’ personal injury firm that we enjoy today. Call us at our San Diego or Los Angeles offices to set up a free consultation today.