Think Your Facebook/Instagram Post is Private? Think Again

It is common these days for people (especially younger people) to post photos and information about themselves and their activities on Facebook, Instagram or other social network platforms.  When people post these photos and messages, they usually are not thinking that such information will be available to the opposing side in litigation should they get injured and be pursuing a damage claim or lawsuit against the responsible party.  A recent example serves to illustrate the point. 

Our client, injured when a commercial delivery vehicle rear-ended her on Highway 101, suffered injuries that ultimately required surgical intervention and rehabilitation for her shoulder and knee.  The lawsuit against the defendant driver and his employer was filed, and our client’s deposition (sworn testimony under oath before a court reporter) was scheduled.  Part way through that deposition, defense counsel began showing our client photos of herself she had posted on Instagram and Facebook depicting various outdoor activities she was engaged in with family and friends, including horseback riding, mountain biking, kayaking, running, snowboarding, etc.  The purpose of his inquiry about the activities shown in the photos (and the dates) was not because he was interested in how much she was enjoying herself; his purpose was to attack her credibility about the impact of the injuries she suffered in the collision on her every day life, the extent of limitations on her function, and the length of time required for her to recover from her injuries and surgeries.

Because the photos and messages were openly available on the various social network platforms, it was easy for the insurance carrier for the defendant driver (and the lawyer they retained to defend the claim) to access that information, and use it for the purpose of damaging our client’s credibility.  For this reason, our firm always advises our clients at the outset of a case that posting about their personal life on such platforms is only done at the risk of the opposition getting ahold of it and using it for their purposes.  In the case described above, we took over from another attorney and all of the posting had occurred well before we were involved in the litigation.  A person is not required to stop living or enjoying any activities of life once they have been injured and filed a lawsuit, but posting these types of photos and information so that it is freely available to the opposing party to use is never a good idea. The defense objective is to pay a plaintiff nothing or as little as possible, and taking such photos and postings out of context is one way of doing that.  A person’s history and medical records are private and confidential until they file a lawsuit and demand damages for their injuries.  Once that litigation is started, a plaintiff has opened up their medical condition and history to inquiry, since they are blaming the defendant for causing the injury and change in their condition.  It is therefore prudent to be careful in posting private information, no matter how fun it may be to share with family and friends.