Discovery of Social Media Accounts in a Personal Injury Case

Posted on July 21, 2015

By: Merielle Enriquez

When defending a personal injury matter, it may sometimes be advantageous to obtain the social media activity generated by the Plaintiff. With today's prevalence of social media, may users cannot help but publicize their activities on a daily basis. This information may especially be useful when the Plaintiff is posting activity that seems to contradict his or her bodily injury claims. For example, Plaintiff claimed severe cervical and lumbar issues, to the point where surgical intervention was allegedly needed. However, this person's Facebook account showed the Plaintiff traveling abroad for leisure and doing other activities that would seem to negate any claim for serious injury. As a result, written discovery was propounded requesting all of Plaintiff's social media data from the date of the loss to the present.

Discovering information on social media is neither quick nor easy. First, given the more intrusive nature of this request, be prepared to respond to an objection by the adverse Party. The adverse Party will likely object based on relevance, since it is likely that a lot of the social media postings will be unrelated to the Plaintiff's physical ability. Accordingly, the defense should be prepared to quickly file a Motion to Compel and obtain an Order from the Court for this information.

Second, even after the defense obtains an Order for social media data, many social media websites, such as Facebook, Instagram, and Twitter, will not just simply respond to a subpoena for this information. In fact, Facebook (which also operates Instagram) states on its website that the only information it will provide in civil actions is general subscriber information, but not content. Twitter has a similar policy (Though it should be noted that these websites have different policies and procedures for criminal matters). Rather, only the user / account owner has the ability to download his or her archived data, which then should be produced to opposing counsel pursuant to the Discovery Request or Order.

The archived data information is extensive and will provide all of the user's social media activity connected to the website. This includes status updates, posts of any kind, comments made by the user, photographs, etc. Obtaining social media data could potentially yield invaluable data that could help discredit Plaintiff's claim for personal injury, and ultimately reduce the value of Plaintiff's claim. In the example cited above, the Plaintiff knew that the social media data would be damaging to the claim. As a result, the matter settled to terms favorable to our client.

Further information on Facebook and Instagram's archived user data can be found at the following link:

https://www.facebook.com/help/212802592074644

Further information on Twitter's archived user data can be found at the following link:

https://support.twitter.com/articles/20170160-downloading-your-twitter-archive

Merielle Enriquez is a Partner with Kring & Chung, LLP's Las Vegas, NV office. She can be reached at (702) 260-9500 or menriquez@kringandchung.com.