“Oops, Fluffy just bit Jason again. Thank goodness she hasn't hurt anyone … yet!” 

People often share shockingly ill-advised things on Facebook and other social media platforms. Sometimes, these posts reveal dangerous biases or incredibly poor judgment. Other times, even harmless-seeming updates—like celebrating a 10-mile run—can create legal complications if you're involved in a lawsuit or investigation involving supposedly severe injuries.

The problem is that most of us don't think about how our social media posts might be used against us in litigation. Besides, you might assume that anything shared only with close friends or family is private—especially if you've adjusted your settings so that only people you trust can see your posts. But the reality is more complicated.

 The Discoverability of “Private” Facebook Posts in Forman v. Henkin

Kelly Forman sued Mark Henkin in 2011, alleging she sustained spinal and traumatic brain injuries after falling off Henkin's horse. Specifically, she claimed that she suffered “spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation.” Before the accident, Forman said she had been very active—cooking, traveling, playing sports, riding horses, boating, and more. She also frequently shared photos of her activities on Facebook.

About six months after the accident, Forman deactivated her account because she felt she could no longer use a computer or express herself coherently. She claimed she had become reclusive, struggled to write even short emails, and often used incorrect grammar and spelling—difficulties she attributed to her brain injury. Henkin, who did not have access to Forman's private Facebook account, suspected that her posts and photos might reveal information relevant to the scope of her injuries and her credibility. He asked the court for access to her entire account, including posts and photos shared only with her friends. He argued that her photographs and the text of her posts were “material and necessary to his defense,” specifically to the scope of her injuries and her overall credibility.

The trial court granted Henkin's motion, but only in part. That court ruled that Forman must produce any photographs prior to the accident that she intended to introduce at trial, all photographs she posted after the accident (so long as they did “not depict nudity or romantic encounters”), and records of each time she posted after the accident along with the number of characters—but not the specific content—in each of those messages. 

Forman appealed this ruling to the New York Appellate Division. That intermediate court modified the lower court ruling, holding that Forman need not produce any data about the text of her postings or any photographs except those she intended to use at trial (who most likely would not share any photos or posts that would undercut her credibility). The New York Court of Appeals reinstated the trial court's ruling, holding that “private” posts on Facebook are not entitled to any special protection based on the user's privacy settings. Rather, such posts should be subject to discovery if they are “material and necessary to the prosecution or defense of an action.”

 As with New York, California provides for broad discovery as well. The state's rules allow for “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Essentially, this means that anything that is relevant to a disputed issue—unless it is privileged or otherwise protected as attorney work, product, or trial preparation materials—should be subject to discovery. The Court of Appeals held that “there is nothing so novel about Facebook materials that precludes application of New York's long-standing disclosure rules.” In "most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence.” Instead, courts continue to use the common standard of whether information is relevant to the dispute, even when considering “private” social media content.

Of course, that standard doesn't open the door for discovery of an entire social media account. This would be “comparable to ordering discovery of every photograph or communication that [a] party shared with any person on any topic.” Information must still be relevant to the subject of dispute (accident) to be discoverable. The correct threshold question, in short, wasn't whether information was believed to be “private” but whether it was reasonably calculated to contain relevant information.

 After all, emails are commonly believed to be entirely private—far more so than Facebook posts—because they involve only the sender and the recipient. Yet emails, along with text messages, are readily discoverable so long as they are relevant to an issue in dispute in a case. Even the right to privacy in medical records, generally protected under the physician-patient privilege, is waived when a party asserts an injury or places her health at issue in litigation.

What does Forman v. Henkin Mean for you??

Insurance companies typically fight hard to minimize the damages paid to a personal injury victim, or in some cases, avoid payment altogether. Insurers and their attorneys employ many different strategies to try and avoid liability. In high-dollar personal injury, medical malpractice, and workers' compensation cases, some even hire private investigators to prove that the claimant's injuries aren't as serious as he or she claims.

Thanks to the Internet, those private investigators now have a much easier job. The more you post and share online, the wider the window becomes for investigators - who can and who will - use it to peer into your everyday life. What you thought was just an innocent post on a Saturday morning about brunch can be taken out of context and used against you.

The Internet is Forever

As social media use has exploded in recent years, so have the risks. You may have heard that what you post online could someday come back to hurt you professionally or personally. You've also probably heard of or seen news stories of criminals implicating themselves by bragging on social media - but it's less widely reported that injury victims can lose settlements or have their damages reduced over misleadingly framed Facebook posts or Instagram photos. 

Protecting Yourself Online after an Injury

Even innocent posts can be harmful when an insurance company's lawyers spin them in court. To minimize these risks:

1. Don't Talk About the Incident or Your Injuries Online.
   It may be tempting to post details of your accident or give updates to friends and family. But each casual retelling may include slight variations in wording or omit small details. A defense attorney can seize on those inconsistencies to claim you're “changing your story.”

2. Avoid Discussing How You Feel.
   Your friends and family may understand that your descriptions of your health, mood, mobility, and more are relative. For someone who is recovering from a 15-foot fall or a severe motorcycle accident, "I feel better today!" might mean that your pain level has dropped from its typical 8 to a 5 for a few hours, or that you had a rare four hours of uninterrupted sleep. To a jury, though, better means... better. This type of simple, subjective comment may be used to suggest that you're exaggerating your injuries.

3. Limit Photos or Videos of Physical Activities.
   Attending a social gathering might be a rare victory during a difficult recovery, but even a few photos or short clips can be used to claim you lead a busy, unrestricted life. Even something as innocent as a picture with friends at a BBQ could be misconstrued. In a case that took place more than a decade ago, there was a defendant who was severely injured after a refrigerator fell on him at work. Three surgeries later, the defendant claimed he was still in constant pain and attempted to extend his workers' compensation benefits. In a hearing that introduced photos of the defendant "partying", he lost his benefits - the social media photos in question revealed nothing more than the defendant sitting with a friend and drinking a beer. 

4. Know Your Audience.
   Double-check your privacy settings and be aware of who can see your posts. But remember that this is only an additional precaution. Never assume that the content you post on social media is secure, regardless of your privacy settings. It is important to remember that content posted to social media that ended up having damaging consequences probably seemed completely harmless to the person at the time of the upload. 

Attempting to Cover Your Tracks Can Backfire

Once you realize a social media post could hurt your case, deleting it may seem like a quick fix. Many plaintiffs (and their attorneys) have very quickly discovered the hard way that this simply does not work. You have a duty to preserve evidence as soon as you anticipate litigation, and destroying relevant material can lead to serious legal consequences.

In one of the highest-profile cases involving destruction of social media evidence, Isaiah Lester saw his wrongful death award slashed after he deleted his Facebook account in an effort to conceal evidence related to his case, then subsequently denied having done so during deposition. Lester and his attorney - who had directed him to "clean up" his social media after a compromising post was exposed during trial - faced sanctions of more than $700,000. Eventually, after an additional two years and an extra court proceeding, the Virginia Supreme Court ruled that reducing Isaiah Lester's award was in error but upheld the previously imposed sanctions. Courts can also allow the opposing side to highlight that you destroyed evidence—making matters even worse.

Work with an Experienced Personal Injury Attorney from the Beginning

The best way to avoid mistakes is to get accurate legal guidance as early as possible. An experienced personal injury lawyer can help you navigate your case while minimizing the risk that harmless social media posts will be turned against you. Don't let a spontaneous comment or photo derail your ability to secure the compensation you deserve.