The injured person’s social media accounts can kill a Florida injury case.
If someone’s negligence caused your injury in Florida and you sue, the contents of all of your social media accounts, if relevant to your personal injury lawsuit, may be discoverable by the negligent party. What about before a lawsuit? If you profile is public, I am not aware of any Florida law prohibiting an insurance adjuster from browsing through a public social media page, such as Facebook or Instagram profile.
On January 23, 2015, the professional ethics committee of the Florida bar issued Proposed Advisory Opinion 14-1 which would allow an injured person to use the highest level of privacy setting on the client’s social media pages. It would be wise for an injured person to set their social media privacy settings to the highest level after their accident.
Even a joke can be taken out of context. Particularly if you have a skeptical liability insurance claims adjuster or juror in your case.
Just because you make your Facebook or other social media settings private and only allow friends or followers to see your pictures, does not mean that the adjuster, defense attorney or jury will not get to see them. Nucci v. Target Corp, Case No. 4D14-138.
One Florida court agreed with prior “cases concluding that Florida courts have said that generally, the photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established.1
Such posted photographs are unlike medical records or communications with one’s attorney, where disclosure is confined to narrow, confidential relationships. Facebook itself does not guarantee privacy. Romano v. Steelcase, Inc., 907 N.Y.S.2d 650, 656 (N.Y. Sup. Ct. 2010). By creating a Facebook account, a user acknowledges that her personal information would be shared with others. Id. at 657.”
As with anything else in life, honesty is the best policy. People who are completely honest have nothing to hide and are probably less concerned about an adjuster looking at their social media profile. I call these people “A” witnesses and I talked about them in #36 above.
All things equal, their cases tend to have a higher settlement values than people who are dishonest, lazy, greedy, angry, envious, ungrateful, gluttonous and/or arrogant.
Why is keeping your social media profile public potentially a bad idea if you are making a personal injury claim? Take a look at the picture below.
If you were the man in the above picture, and you were making a claim for pain and suffering from accident, would you want the insurance adjuster to see this picture before you file a lawsuit? If your answer is no, then you would not want the jury to see this picture as well. How much pain does the man look like he is in?
Even before a lawsuit, the claims adjuster can hire a private investigator to follow you, and take video and pictures of you, but browsing a public Facebook (or other social medical) page is free and can be done quicker than the time it takes to hire an investigator.
Now, what if you have marijuana leaves on your Facebook page but you your medical records say that you do not smoke pot. That can be devastating as well.
The aforementioned proposed advisory opinion also states, paraphrased, “Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, … a client may remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.”
On the flip side, I am not aware of any law that would prohibit an injured person from browsing the site of someone whose negligence caused their injury in Florida.
Footnote
1 See Davenport v. State Farm Mut. Auto. Ins. Co., No. 3:11-cv-632-J-JBT, 2012 WL 555759, at *1 (M.D. Fla. Feb. 21, 2012); see also Patterson v. Turner Constr. Co., 931 N.Y.S.2d 311, 312 (N.Y. App. 2011) (holding that the “postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access”).
Over 86 factors affect the value of a Florida injury case
The injured person’s social media accounts are just one of the 51 factors that may affect the settlement value of a Florida injury case. There are countless other factors as well.
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