There's a risk that what plaintiffs put online 'can and will be used against them'
This article was produced in partnership with Thomson Rogers LLP
Social media evidence in personal injury cases is becoming more of a live issue as more often than not, the injured party has an online presence. Posts — particularly photos — depicting what the person is doing since the accident can potentially conflict with, undermine, or contradict claims about the severity of their injuries — and negatively impact the outcome of their case — even when these posts or photos are innocent.
Injury victims should maintain a low profile online to help ensure that nothing from their social media is used in an unintended way by the defence.
“Reminding your client to exercise caution should be top of mind for lawyers from the first client meeting, and again at different milestones along the way,” advises Daniel Klein, partner at Thomson Rogers LLP. “Bear in mind that even when injured people are being truthful about their limitations as a consequence of their injury, there’s still a risk that what they put online can and will be used against them.”
The first thing that comes to mind is a post that presents an obvious problem: an injured person tells their doctor they can’t cut the grass anymore and then uploads a photo of themselves mowing their lawn. But the potential risk stemming from anything shared online while a case is ongoing is more nuanced, Klein explains.
For example, someone involved in a serious car crash loses the ability to maintain employment, goes into depression, and sees doctors about their condition. Because they’re going through a hard time, a friend asks them to go for a coffee or see a movie — social activities with loved ones, as recommended by their psychologist — and they later post a photo on Instagram of themselves smiling during the outing.
Or, the injured person is invited to a family member’s destination wedding. They may not want to go, nor feel able to enjoy themselves, but their family encourages them to attend. Again, psychologists would encourage those suffering from depression to try and get back into normal life. But suddenly there are photos on Facebook of the person smiling on a beach in an exotic locale, looking like they’re on vacation.
“Social media posts are a snapshot of a moment in time without context; they don’t show the hours before or after, and a brain injury or depression is an invisible injury or illness,” Klein notes. “Insurance companies know that but try to interpret them in a way that adversely impacts the plaintiff’s claim or credibility.”
Rule 30 of the Rules of Civil Procedure dictates that each side discloses all relevant information, including electronic items. Typically, during the discovery phase of a lawsuit, the defence will ask the plaintiff at the examination what kind of social media presence they have and how they’ve been using it since the accident.
If the person says they haven’t posted anything on their social media accounts since their injury, and there’s no evidence to suggest otherwise, then it’s probably not relevant. But if they like to ski regularly and document it on their Instagram, for example, that can be relevant — and while the courts balance relevance and full disclosure on the one hand, versus privacy concerns on the other, “privacy is not a trump card,” Klein warns.
“Just having a private account is not enough to prevent disclosure. Courts can and have required the injured person to produce their social media, or select posts during a specific time frame, depending on the facts of the case. The courts prefer there be an open book where everybody knows everything, so there are no surprises and cases are more likely to resolve before trial.”
If a case does proceed to trial and social media posts are presented to a judge or jury, plaintiff-side lawyers should ensure to contextualize the evidence so that the trier of fact has the relevant information when weighing it in terms of in favour of the injured person or the insurance company.
As lawyers get more familiar with the use of social media evidence — and more junior lawyers start their practice already very savvy about what constitutes an online presence — Klein predicts it will go beyond what people think typically of as social media. No longer contained to platforms like Instagram, Facebook, and Snapchat, data can be retrieved from things like FitBit apps, for example, which can also contain relevant information.
While he foresees plaintiffs and their counsel having a harder time arguing privacy concerns over data that simply shows when, where, and for how many kilometres you ran, ultimately the same rules apply when it comes to managing digital footprints in personal injury cases.
“Plaintiff-side lawyers are always advising clients to be honest and truthful, so it’s not about hiding things,” he sums up. “It’s about being cautious and mitigating the risk that it will be used against your client, even when the post is innocent.”
