December 20 2017

During the holidays please don’t over – share on social media!

If you are in a personal injury lawsuit take a look at what is being shared on your social media accounts.

As we enjoy the winter holidays with friends and family, it is almost second nature for us to post our holiday adventures on social media. As experienced plaintiffs’ personal injury lawyers, we must caution you that if you are in a personal injury lawsuit it’s not always best to over-share on social media. The material you share can be “mined” by defence counsel in a personal injury lawsuit in a manner that might undermine your case for damages.

The value of the Facebook evidence regarding you credibility can be undermined in a personal injury case.

This is illustrated by the recent British Columbia case of Tambosso v. Holmes, (overturned on appeal in this British Columbia Court of Appeal case and a new trial ordered on other grounds). In this case, a 27- year-old woman was involved in two motor vehicle accidents. Her primary injury was PTSD, although she also stated she suffered from strain and sprain to her spine and neck, shoulders, back and hands, as well as headaches, anxiety and memory loss. Prior to the accident she had been very active in sports and was a social person. After the accident she claimed she became a shell of her former self, was housebound, unable to work, lost most of her friends and was socially inactive. At the trial, defence counsel entered 149 pages of Facebook entries that had been ordered to be produced with photos and commentary that painted a different picture. She was seen to be enjoying various social activities, and commenting on how much she was enjoying her social life. Her friends “tagged” her in their own Facebook photo albums that showed her drinking with friends and appearing to be having fun. The trial judge found this Facebook evidence very compelling and concluded that she continued to have an active social life after the accidents. For these and other reasons the credibility of the plaintiff was significantly impacted, and the trial judge awarded only minimal damages for both her pain and suffering and loss of income. The trial judge’s general findings as to credibility were overturned on appeal and a new trial ordered, but on the basis that the judge had not paid enough attention to corroborating evidence of witnesses etc. The value of the Facebook evidence regarding her credibility was not overturned by the appellate court.

Adjusting your privacy settings can still be producible in personal injury litigation.

Many people participating in social media believe that they will be protected if they carefully adjust their privacy settings on their social media so that only their close family and friends can see their posted photos and commentary. Unfortunately, many courts have taken the position that even items hidden behind a privacy wall can be producible in personal injury litigation, and have also ordered the plaintiff to submit to questioning on the photos and commentary behind the privacy wall. This is illustrated by this leading 2012 British Columbia case, Fric v. Gershman. The plaintiff, a young woman, was a recent graduate of law school and had been injured in a motor vehicle accident while she was a first-year law student. She claimed to suffer from chronic severe headaches, injury and pain to her upper back, and neck pain. She maintained a public and a private Facebook profile, and defense counsel in the personal injury action sought to compel production of the photos and commentary in her private Facebook profile. She argued that her privacy should be safeguarded, but the judge ordered production of the photos, (but not the commentary), as relevant to the lawsuit.

A further concern is that your family and friends may “tag” you on their social media accounts, and this can be used against you in your personal injury action. This happened to the plaintiff in Tambosso, who had materials from the social media accounts of several of her friends entered into evidence at trial against her, with the disastrous initial result at trial caused to some extent by this “tagging”.

Simply closing your social media accounts can amount to “spoliation” of evidence resulting in large monetary penalties.

Participants in social media often think that they can simply close down their Facebook and other social media accounts and remove their photos and commentary from the sites in the event that they become involved in a personal injury lawsuit. Unfortunately, such actions can amount to “spoilation” of the evidence and large monetary sanctions can be assessed against both the plaintiff who shuts down the social media accounts and any lawyer who advises them to do so. This is illustrated by the American case of Lester v. Allied Concrete Co., where the plaintiff’s lawyer advised him to “clean up” his Facebook page so as to destroy evidence that could harm his lawsuit. The lawyer also told the plaintiff to deactivate his Facebook account so that he could respond negatively to any question at examinations for discovery regarding his ownership of any Facebook account. For this “spoilation” and deceit a historic $722,000 award was made against the lawyer and the client – $542,000 against the lawyer, and $180,000 against the client. In addition, the lawyer was suspended from practice for five years because of his role in this spoilation of the Facebook evidence.

The bottom line: Be mindful of what you are posting and being tagged in over the holidays.

Thus, the bottom line is to be very careful as to what you are sharing on social media in this holiday season. You should also discuss with your family and friends that they should make sure that they are not “tagging” you in situations that could undermine your personal injury action as well.

If you have any questions or concerns about “over-sharing” on social media and the effect it can have on your personal injury lawsuit, please CONTACT the friendly, helpful, and knowledgeable lawyers at CAM LLP for a free consultation.