Social Media Can Damage Your Lawsuit
Attorney Kimberly Beck
We all know the ugly, or rather falsely beautiful truth of Facebook, Instagram, and Twitter, or any other social media. Maybe you took a selfie and noticed that you would probably look a little better if you smoothed out some of those undereye lines or narrowed your waist a little bit. These changes are so easy to make, so you make them before you post the pictures. It’s also easy enough to get one great-looking picture of yourself if you take several hundred. Maybe that great looking picture implies that you hiked that impressive trail behind you. Just to add some pizazz you might include a few words like “Having a great trip with the kids. Lots of hiking. 😊” Everyone embellishes a little bit (or a lot) on social media, right? So, what’s the harm?
Are you Lying Then or Are you Lying Now?
Every single statement you make and every single picture you post on social media could come back to haunt you. If you claim in your lawsuit that your ankle was permanently damaged in the car accident caused by the defendant, but you post pictures of yourself hiking or implying that you have been hiking you’re your kids at the Grand Canyon, the jury will – at best – think you are malingering and at worst, think that you are flat out lying. No one will be interested in listening to your story that you didn’t really get a chance to hike; you just stood at the top and took pictures. And, no juror is going to believe that this trip was just so important to you because it was the last family trip before your kids went off to college that you just had to hike and suffer the consequences later.
But, My Social Media Accounts Are Private!
The following is a true story. Only the names have been changed. This is not one of my cases. I thank my Summer Clerk, Will Murphy for finding this case on Lexis.
Ron Zimmer’s leg was severely injured in a forklift accident that occurred at Webber Warehouse. Zimmer sued Webber and the case was apparently heating up.
Zimmer’s Facebook and MySpace pages were set to private. However, there was enough limited information available to the public to enable Webber to obtain a court order requiring Zimmer to turn over all his social media passwords. The private portions of the Facebook and MySpace pages showed Zimmer riding a motorcycle and even performing motorcycle stunts. The scar he suffered as a result of the forklift accident were clearly visible, so it was clear the pictures were taken after the forklift accident.
Is there a reasonable explanation for Zimmer’s pictures that consistent with the allegations he made in his lawsuit? Maybe. We will likely never know because the case settled immediately after the court required Zimmer to disclose his passwords. Presumably, it settled for a lot less than it otherwise would have.
So, I Just Need to Make Sure the Public Portion of My Social Media Pages Don’t Imply that I am Doing Better than I Am.
Nope. That won’t do it either. The following is another true story that Will found for me on Lexis. Only the names have been changed – in this case, not very creatively.
Plaintiff Ellen Holder sued her employer Whips Fargo. She said that Whips discriminated against her because she was disabled, and that the discrimination caused her anxiety and emotional harm. Whips argued to the judge that Holder put her mental health at issue. The judge agreed. The judge also agreed that Whips was entitled to see all of her social media posts that related to her anxiety or mental health.
What was in those social media pages? I do not know. Probably, none of us ever will. The case settled, probably for a lot less than it should have settled, right after the judge told Ellen that she would have give Whips Fargo access to her private pages.
There are lessons to be learned from these unfortunate souls. First, if you can stay off social media altogether while you are suing someone, just stay off. If that is not realistic or if everyone around you will post pictures implying that you are doing well when you really are not, try to minimize the damage. Try to post less. And, ask your friends and family to leave you out of most of their posts.
And, remember, merely marking a page as “private” does not mean that it will indeed always be private.