Penalized for Deleting Social Media Account

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

If you are a follower of this podcast, the odds are you also use social media.

Many people are addicted to surfing social media and posting to social media.

If you are not addicted to this podcast; why not?

There are too many social media outlets to name here.

The critical point of our message does not depend on the name of the social media outlet.

No matter the outlets you use, just remember: “anything you say or do can and will be used against you in a court of law.”

It’s tempting to say that anyone contemplating suing for personal injuries should discontinue using social media.

Such advice might be sound and ethical in some situations, and in others, maybe not.

In fact, depending on the situation, past postings may be helpful. Suppose a person is seriously injured, but posts of photos and video clips before the injury show the person surfing, skydiving, and otherwise highly active. Such information establishes the severity of the loss suffered.

It is routine these days for the defense team to request the production of all social media data from a plaintiff.

Likewise, the plaintiff’s attorney will likely request that the defense produce all the defendant’s social media data.

Some people may think deleting the information posted is smart to do. But it really is not.

In most cases, the hosting company will still have the data you think you have deleted.

So, even if you close an account, forensic experts have ways of recovering photos or other posts that have been deleted.

Here are a few examples of how courts have ruled on the issue of whether a party to litigation must produce social media information.

– One court said “… voluntarily posted all of the pictures and information … and he cannot now claim he possesses any reasonable expectation of privacy to prevent … access to such information.”

– Another court stated that “material posted on a “private” Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by … notions of privacy.”

– A third court said, “Materials posted … would not be shielded from discovery in a civil matter … ‘merely because plaintiff used the service’s privacy settings to restrict access if the material is relevant to the litigation.”

– Still another court stated “[i]f you post a tweet, just like you scream out a window, there is no reasonable expectation of privacy.”

The bottom line is that deleting social media accounts in the midst of litigation may come with a big penalty.

Here is an example of how deleting information resulted in a $5 million penalty.

A husband sued for the wrongful death of his wife, who was killed in a truck crash. At trial, the jury awarded $10 million. Following the trial, the judge cut the award in half (by $5 million) and sanctioned the husband AND his attorney. Why? The court found out that the attorney and client had destroyed social media evidence.

Destroying any evidence will get a party and their attorney into trouble.

In this case, the court said the destruction of social media information was part of a pattern of deceptive and obstructionist conduct. The destroyed   social media content was requested in discovery which the husband and his attorney refused to produce. The defendant hired a computer expert who proved 16 photos had been deleted from the account.

One photo posted by the husband showed him drinking a beer and wearing a T-shirt with the phrase “I ♥ hot moms.”

Maybe you are scratching your head at why the husband and attorney wanted to destroy a simple T-shirt photo.

I don’t know the answer, but my guess is at trial the husband told the jury that he missed his wife who died in the crash. The husband and attorney probably thought a photo showing the husband laughing it up and on the hunt for a new wife within days of the crash would not play well with the jury. Just guessing.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”