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Personal Injury – Social Media

Fairfax Injury Lawyer Brien Roche Addresses Personal Injury-Social Media

Brien Roche

Social media is a game changer in regards to personal injury claims.  That applies to both sides. For instance a defense expert posts on a Facebook page that he would never testify on behalf of a plaintiff. He goes on to say he believes the entire tort system is a failure. That is relevant.

Personal Injury and Social Media

Virginia’s spoliation law needs special heed when it comes to social media postings. Social media content can be harmful based upon the content. In addition it can be harmful if the social media is destroyed after the claim arises.  Losing the evidence when a reasonable person should have foreseen it was material to a potential civil action is a problem.  It is important make sure the client retains all such postings once the claim arises.

Some clients are addicted to social media.  Any cautions to cease posting may be disregarded.

Social Media in The Public Domain

The content of social postings is discoverable if they are in the public domain.  There is no right to privacy or privilege that protects those postings. Content that is maintained as private is another issue. If what is available in the public domain is relevant to the lawsuit that is the basis for seeing what is posted privately.

Broad requests for all social media content are subject to objection. Likewise requests for all social media content using an internal archive feature is overly broad.  The request for social media content must be narrowly tailored. It is not a fishing expedition.

There must be some factual predicate for making the request. In other words there must be a showing based upon facts already in the record. Those facts must point to there being additional discoverable info. These facts are the public account.  For instance info in the publicly available portion of a user’s profile is the basis for further discovery.  Therefore the starting point is informal discovery.  That informal discovery consist of searching all publicly available info.  This is done through Google, Facebook or Instagram. Check other social media pages.  Those public pages may point to there being more. After exhausting all publicly available info then formal discovery tools are appropriate. Call, or contact us for a free consult.

Personal Injury and Social Media Discovery

Some things that in most cases cannot be obtained through discovery are:

  • Login credentials.
  • Info from the social media services.  The Stored Communication Act found in 18 U.S.C. § 2701 forbids providers “from disclosing the contents of an account to any nongovernmental entity pursuant to a subpoena or court order.

In the case of James v. Edwards, 85 Va. Cir. 139 (2012) the plaintiff alleged severe injuries after an auto crash.  His Facebook page contained a photo of him binge drinking and attending parties.  Defense counsel moved to compel his Facebook user name and password. They also wanted complete copies of the contents of the Facebook account.  Although the court refused to compel disclosure of user name and password it did permit the defendant to access the plaintiff’s Facebook account. This was under supervision of plaintiff’s counsel.

Settling simply for screen shots of social media content is not enough. An extensive amount of content is missed with simple screen shots. In addition there is no meta data that is provided.

“Internal archive functions” may not be enough. A forensic collection tool will reveal not only what was posted but when it was posted. In addition it will show from where it was posted. In other words the postings may have occurred moments after a crash. They may have occurred at the crash site. All of that is relevant.

More Info

Call, or contact us for a free consult. For more information in regards to personal injury claims see the other pages on this site.  For more information on social media see the pages on Wikipedia.

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Personal Injury – Social Media

Fairfax Injury Lawyer Brien Roche Addresses Personal Injury-Social Media

Brien Roche

Social media is a game changer in regards to personal injury claims.  That applies to both sides. For instance a defense expert posts on a Facebook page that he would never testify on behalf of a plaintiff. He goes on to say he believes the entire tort system is a failure. That is relevant.

Personal Injury and Social Media

Virginia’s spoliation law needs special heed when it comes to social media postings. Social media content can be harmful based upon the content. In addition it can be harmful if the social media is destroyed after the claim arises.  Losing the evidence when a reasonable person should have foreseen it was material to a potential civil action is a problem.  It is important make sure the client retains all such postings once the claim arises.

Some clients are addicted to social media.  Any cautions to cease posting may be disregarded.

Social Media in The Public Domain

The content of social postings is discoverable if they are in the public domain.  There is no right to privacy or privilege that protects those postings. Content that is maintained as private is another issue. If what is available in the public domain is relevant to the lawsuit that is the basis for seeing what is posted privately.

Broad requests for all social media content are subject to objection. Likewise requests for all social media content using an internal archive feature is overly broad.  The request for social media content must be narrowly tailored. It is not a fishing expedition.

There must be some factual predicate for making the request. In other words there must be a showing based upon facts already in the record. Those facts must point to there being additional discoverable info. These facts are the public account.  For instance info in the publicly available portion of a user’s profile is the basis for further discovery.  Therefore the starting point is informal discovery.  That informal discovery consist of searching all publicly available info.  This is done through Google, Facebook or Instagram. Check other social media pages.  Those public pages may point to there being more. After exhausting all publicly available info then formal discovery tools are appropriate. Call, or contact us for a free consult.

Personal Injury and Social Media Discovery

Some things that in most cases cannot be obtained through discovery are:

  • Login credentials.
  • Info from the social media services.  The Stored Communication Act found in 18 U.S.C. § 2701 forbids providers “from disclosing the contents of an account to any nongovernmental entity pursuant to a subpoena or court order.

In the case of James v. Edwards, 85 Va. Cir. 139 (2012) the plaintiff alleged severe injuries after an auto crash.  His Facebook page contained a photo of him binge drinking and attending parties.  Defense counsel moved to compel his Facebook user name and password. They also wanted complete copies of the contents of the Facebook account.  Although the court refused to compel disclosure of user name and password it did permit the defendant to access the plaintiff’s Facebook account. This was under supervision of plaintiff’s counsel.

Settling simply for screen shots of social media content is not enough. An extensive amount of content is missed with simple screen shots. In addition there is no meta data that is provided.

“Internal archive functions” may not be enough. A forensic collection tool will reveal not only what was posted but when it was posted. In addition it will show from where it was posted. In other words the postings may have occurred moments after a crash. They may have occurred at the crash site. All of that is relevant.

More Info

Call, or contact us for a free consult. For more information in regards to personal injury claims see the other pages on this site.  For more information on social media see the pages on Wikipedia.

Contact Us For A Free Consultation

Contact Us For A Free Consultation