A recent article in Slate online magazine (Evidence of Life on Facebook) discussed the disturbing trend of defense attorneys using social media posts by plaintiffs in personal injury cases as evidence of their physical and emotional states. Moving forward, plaintiffs should expect everything they’ve ever posted online to be examined for evidence that their claims of injuries, emotional distress, or loss of enjoyment of life are false or exaggerated.
Most of us are aware that our online presence can affect our reputations. Prospective employers, friends, and family may change their opinion of us based on an ill-advised political statement or wild photo from that crazy party we attended. But if you’re a personal injury plaintiff, you also need to worry about posting seemingly innocuous photos of everyday life.
In the pre-social media days, a defendant might hire a private detective to try to photograph a plaintiff doing things that showed a lack of injury or emotional distress. Today, all they have to do is ask the judge for access to the plaintiff’s social media accounts. The problem is that our online posts are often not an accurate depiction of our lives. We’re selectively choosing images that put our best foot forward to the outside world. No one is going to post a photo of the time they couldn’t get out of bed or had to be helped into the car. We want our friends and acquaintances to think we’re doing great, even if it’s not true.
At least one court has realized this and limited discovery to online activity that directly references the plaintiff’s emotions (Giacchetto v. Patchogue-Medford Union Free School District). The judge notes that “the fact that an individual may express some degree of joy, happiness, or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress.”
Hopefully, other courts will follow suit and recognize that one self-selected happy image does not prove that a plaintiff is not suffering. But until then, be careful what you post online: good or bad.