Given the overwhelming popularity of social media websites like Facebook, Instagram and Twitter, there has been a significant amount of litigation as to whether an individual’s social media activity should be discoverable in a personal injury action. Oftentimes, plaintiffs will continue to post pictures or statements to their social media accounts post-accident that may jeopardize their claims in a pending lawsuit.

A recent decision from the Appellate Division, First Department, makes it clear that your Facebook pictures are fair game for defense attorneys to the extent that they are relevant to the claimed injuries. In Spearin v. Linmari, the plaintiff sustained a brain injury when he was struck in the head by a piece of wood that fell from the defendant’s building. During his deposition, the plaintiff testified that he was no longer able to play the piano as a result of his injuries. After conducting a search of public profiles on Facebook, a search easily available to anyone with internet access, defense counsel found several photographs of the plaintiff sitting in front of a piano after his accident. Given that the photographs contradicted plaintiff’s testimony, defense counsel demanded access to all of the plaintiff’s Facebook page, including those portions only visible to the plaintiff’s “friends.” The Court held that the defendant would be entitled to the postings relevant to the alleged injuries, and ordered in camera review for the court to determine which postings were relevant.

As a matter of course, defense counsel should always perform a search across all social media platforms at the outset of a case. You never know what valuable information a plaintiff may have inadvertently kept public that could diminish his or her claim.

Thanks to Jeremy Seeman for his contribution to this post.