Be Careful What You Share to Social Media During a Lawsuit

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Imagine this: you’re in a car accident and as a result, break your arm. (Ouch.) You sue the individual who was driving the other car. The next month, you’re at a Jets game rooting for your team and post some pictures on Facebook, making one of them your new profile picture. A month later, your attorney calls you up, questioning if you posted pictures from the Jets game. As it turns out, the defendant’s demanding full access to your Facebook account to disprove your injuries. The big question is, are they entitled to access your Facebook account?

Discovery is an absolutely essential part of litigation. In basic terms, discovery fuels the arguments that each side of the lawsuit makes, by providing relevant information about the opponent. In the past, discovery typically consisted of documents, but as time and technology has progressed, electronic discovery has become more prevalent. This has raised some very interesting questions in Personal Injury Law, like the above situation.

Courts have a tough issue to handle. On the one hand, social media could be extremely relevant to a Personal Injury action. It could disprove a plaintiff’s injuries, or at the very least, make those injuries questionable. On the other hand, that is a plaintiff’s personal Facebook page. Why should the defendant have access to that personal account information?

The Balancing Act and Current Law: New York

New York courts have grappled with this issue and come up with a fairly reasonable standard in order to balance these competing interests. They have established a two-prong test for determining whether social media accounts are discoverable. First, courts must determine whether the content in the account is material and necessary. Second, courts must balance whether the production of the content would result in a violation of the account holder’s privacy rights.

For a defendant to successfully maintain access to discovery under this two-prong test, he must “establish a factual predicate for their request by identifying relevant information in plaintiff’s [social media] account-that is, information that contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” In other words, the defendant must show that there is content on the plaintiff’s social media account that is not only relevant to the personal injury action, but also contradicts or conflicts with the plaintiff’s claims. If the defendant can establish that, then discovery of social media accounts should be permitted.

The courts have been fairly strict with applying this standard, however. The court will not allow a defendant to simply demand disclosure of social media accounts on the basis that access may reveal information that contradicts or conflicts with a plaintiff’s claim of disability. The court has labeled such a request as a “fishing expedition” and will not allow it.

The Car Accident Revisted

So, is the defendant entitled to access your Facebook account? The answer lies within the specific facts. In the original car accident example, the content of the photograph is key. If the defendant is simply asking for access to the Facebook account because it might reveal activities that contradict with the your claim, that probably will not be sufficient for the court to demand disclosure of your account information. If your profile picture portrays you fist pumping your broken arm in the air, however, it is more likely that the court will grant access to your Facebook account, since the pictures contradict the complaint regarding your broken arm.

The interesting part about Social Media discovery is that it is an evolving area of law. As social media websites continue to develop, so too must the law. It seems that New York courts have fairly balanced these competing interests thus far, but it will certainly be interesting to see what issues arise in the future.


Melissa Klafter has a JD from St. John’s University School of Law and plans to pursue a career in Personal Injury Law. You can find her binge-watching her favorite TV shows, rooting for the Wisconsin Badgers, and playing with her kitty, Phoebe. Contact Melissa at



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