Social Media Mistakes That Hurt Injury Cases

Within hours of a personal injury case being filed, the other driver’s insurance company assigns an adjuster whose job is to limit how much the insurer pays. Searching the claimant’s social media accounts is now a standard part of that investigation. It costs the insurer almost nothing and can save it thousands or even hundreds of thousands of dollars if the adjuster finds the right post.

Social Media as Injury Case Evidence

Social media can become evidence in an injury case. Public posts may prompt requests for other relevant material, and courts have addressed discovery disputes involving private Facebook content. The court decisions discussed below show why an account’s privacy setting does not settle the discovery question, and the overview of social media surveillance covers how insurers monitor accounts.

Adjuster Social Media Searches

Adjusters read a claimant’s posts to build a case against the case, and their search follows a specific pattern:

• Physical activity inconsistent with claimed injuries: hiking photos, gym check-ins, sports participation, or even standing for long periods at an event
• Travel and social activity: vacation posts, concert photos, or restaurant check-ins that suggest the claimant’s life is less limited than the case states
• Statements about the accident: any description of the crash, fault, or the other driver that differs from the official case
• Comments about the insurer or the other party: venting about the insurance process or describing case strategy
• Tagged posts and friend activity: a tag from a friend can place the claimant at a location or activity never mentioned
• Old posts establishing a baseline: pre-accident content can be used to argue that pre-existing conditions or previous injuries caused the current symptoms

Private Posts in Litigation

Private settings do not create a blanket exemption from discovery. In federal civil cases, Rule 26(b)(1) concerns nonprivileged information relevant to a case or defense and proportional to the needs of the case. State-court rules and protective orders may differ. A request does not automatically entitle an opponent to an entire account. Relevant posts and messages should be preserved, and counsel should address the scope of any request.

Six Social Media Mistakes That Damage Cases

Court Rulings on Social Media Evidence

In Romano v. Steelcase Inc. (2010), a New York trial court ordered disclosure of Facebook and MySpace material after public posts appeared inconsistent with the plaintiff’s claimed limitations. It was a discovery ruling, and it did not hold that every social media account is open to unrestricted review.

In Forman v. Henkin (2018), New York’s highest court addressed Facebook discovery in an injury case and called for requests tailored to the cases and relevant information. These New York decisions illustrate discovery issues; the rules governing a Kentucky case must be evaluated separately.

Social Media Practices During a Case

Existing content should be preserved, and any requested changes should be discussed with the attorney first.

Steps That Protect Evidence

• Ask the attorney about privacy settings while preserving existing content
• Stop posting until the case is fully resolved
• Ask family and friends not to tag the claimant in anything
• Screenshot and preserve evidence from the other party’s social media, without deleting the claimant’s own posts
• Review accounts with the attorney before anything is produced in discovery

Conduct to Avoid

• Posting about the accident, injuries, or medical treatment
• Checking in anywhere or sharing location data
• Commenting on others’ posts about activity levels
• Accepting friend requests from unknown people
• Deleting posts that existed before or at the time of the accident

Discovery Requests for Social Media

During litigation, a party may seek relevant social media material through requests directed to the account holder, part of the discovery process in a Kentucky injury lawsuit. What must be produced depends on the governing rules, objections, and court orders. A civil subpoena sent to a platform does not automatically unlock private message content: the Stored Communications Act, including 18 U.S.C. § 2702, restricts provider disclosure subject to statutory exceptions.

In a federal case, Rule 26(b)(1) requires relevance and proportionality. Discovery can be limited to appropriate subjects and periods, and protective orders may address privacy concerns. The rules governing admissibility at trial are a separate question from the rules governing discovery. Related risks from early insurer contact are covered in the resource on insurance recorded statements.