By:
Attorney Sungkyu S. Lee
Your social media posts can be used against you in a personal injury case. These days, many people use social media websites such as Facebook, Instagram, Twitter, TikTok, etc. When you file a lawsuit, one of the first things that the defense will do is Google you. They might also look you up on social media websites. Take Facebook for example. If your Facebook profile is public, then anyone can access your posts. If your profile is private, then your information is only available to people who you have authorized as being your “friend.”
The law in this area is catching up with modern technology. Just last year, the New Jersey Supreme Court decided a case called Matter of Robertelli, 248 N.J. 293 (2021). The Robertelli case arose out of a personal injury lawsuit that occurred in 2007. The injured person, Dennis Hernandez, was doing pushups in a police station parking lot when he was struck by a police vehicle. This causing Hernandez permanent physical injuries and loss of an athletic scholarship.
The defense attorney, Robertelli, asked his paralegal to look up Hernandez online. The paralegal found Hernandez’s Facebook page and sent him a flirtatious message asking him to “friend” her. Hernandez did not know that the paralegal was working for one of the defense attorneys in his case. Hernandez accepted the “friend” request, allowing the defense to access Hernandez’s private Facebook information that was supposed to be for his friends only. The paralegal downloaded some of Hernandez’s Facebook posts including video showing Hernandez wrestling with his brother. The defense wanted to use the video to downplay Hernandez’s injuries. Hernandez maintained that the wrestling video was taken before the accident occurred.
The defense attorney forwarded the wrestling video to Hernandez’s attorney AFTER taking Hernandez’s deposition. Luckily, the trial court judge did not allow the defense to use the Facebook information at trial because it was produced after the discovery period had ended. Hernandez’s lawyer filed an ethics complaint against the defense attorney because the defense attorney had had his paralegal contact Hernandez even though he knew that Hernandez was represented by counsel. The Supreme Court stated:
“Although it is fair game for the adversary lawyer to gather information from the public realm, such as information that a party exposes to the public online, it is not ethical for the lawyer -- through a communication -- to coax, cajole, or charm an adverse represented party into revealing what that person has chosen to keep private.”
Ultimately, the NJ Supreme Court dismissed the ethics charges against the defense attorney because Facebook was so new at the time and there was not enough evidence showing that the defense attorney understood what “friending” was in Facebook.
The Supreme Court did NOT make a ruling on whether the trial court’s barring of the Facebook information was proper or not. The New Jersey Rules of Evidence presume that any relevant evidence is admissible at trial unless there is a valid reason to exclude it. There is no exclusion specifically dealing with social media posts. When confronted with this issue, the trial judge assigned to your case will make a decision on whether your social media information will be admissible or not. This can come down to a lot of factors such as whether the social media information was properly obtained, whether the information is reliable (ie, whether there was any forgery, hacking, etc.), and whether the information was properly produced during discovery. These rulings are within the discretion of the trial judge and they can be appealed to a higher court. To date, however, there have not been any appeals on this issue in New Jersey.
So what should you do? At a bare minimum, make sure your information is only available to your “friends.” Per the Robertelli case, opposing lawyers may not “friend” you or have others “friend” you on their behalf. This will only protect you if you set your privacy settings to “friends only”. Beware that different apps have different privacy settings. For example, if you post to Tiktok, you may not have control over who is seeing your videos.
If you are injured and need to file a lawsuit, do not post anything on social media about the incident. Do not post photos, videos, status updates, etc. We have seen people post things like, “Thank God I’m okay.” Or “I was in a car accident, but I’m doing much better now, thank you!” These may seem innocent enough, but the other side could use these to argue that your injuries were minor. Keep in mind that if your social media posts are shown to a jury, they don’t know you. If your post was meant to be humorous or sarcastic, the jury might not understand that. You can temporarily deactivate your social media accounts while your lawsuit is active and re-activate them when your case is over.
The law in this area has not caught up to our rapidly evolving technology and will likely lag behind the latest changes for several years. Keep in mind that the Robertelli incident happened back in 2007. That’s when the original iPhone came out! This is yet another reason why you should always consult with an attorney if you’re injured in an accident.