Be careful what you post on websites like Facebook and MySpace. Because social media case law is still being written. Judges have to use their own discretion in determining what can be compelled to be produced by court order in a personal injury case. One plaintiff recently found this out the hard way when she was ordered to turn over information from social networking sites to the defendants’ counsel.
In the case of Thompson v. AutoLiv, the plaintiff alleged that she suffered “massive, life-threatening, permanent, and irreversible injuries” as the result of a faulty seat belt that failed to restrain her during an auto accident. Thompson stated in her complaint that the defendant knew that the seat belt could “spool out” during an accident and did nothing to stop the distribution of cars with these faulty belts or to warn potential victims. The plaintiff also filed suit against TRW, the manufacturer of the airbags in the car, claiming that they did not deploy as intended at 27 miles per hour. On the surface, this looks like a typical product liability case, and normal discovery procedure would be limited to the plaintiff producing copies of medical records and other information relevant to the case.
However, a recent order in the United States District Court for Nevada is ordering the plaintiff to produce new evidence. This order comes directly from a request by the defendant due to a Facebook and MySpace search. Apparently, the defendant browsed the plaintiff’s social media pages and found that some of her posts were inconsistent with the stated injuries.
Specifically, the defendant alleges that Thompson appeared on Facebook and other social media sites in photographs depicting her engaged in dancing, swinging on swing sets, and enjoying various water sports–all things that she claimed she was unable to do as a result of her injuries. Her Facebook page also gave detailed information about her social life and relationship status with various friends, as well as her employment history from the date of the accident. The defendant claimed that all of this public information directly contradicted claims made in her complaint against the company and was therefore relevant to the lawsuit.
However, when initially asked to produce copies of her Facebook and other social media photographs and wall posts, the plaintiff denied that the defendant had any right to this material and sent them severely redacted copies of her social media activity instead. She also changed her privacy settings so the defendant no longer had access to her pages.
The United States District Court determined that the social media material requested by the defendant was relative to the case, despite the plaintiff’s argument to the contrary and the plaintiff’s further argument that some of the requested material included “tagged” photos from other people’s social media pages over which the plaintiff had no control. The court also determined that the plaintiff must hand over all uploaded posts and photos to the defendant within ten days, although the defendant is not permitted to make copies of or share the information with anyone outside of the defendant’s legal counsel.
Remember that everything you post on the internet is out there somewhere, and be careful about releasing any type of personal information, especially if you are pursuing a claim against another party.