William W. Hurst – Indianapolis Car Accident Lawyer
Almost everyone nowadays is on some form of social media site, be it Facebook, Twitter, Linkedin, twitter or any of a number of others. One question our clients have is “Can I continue to post on social media sites if I have a claim or lawsuit going on? And if so, can those posts be used against me?” The answer is that we, along with most other Plaintiff’s attorneys, discourage clients from continuing to use social media sites after a claim or lawsuit has been filed, EVEN IF YOUR SECURITIY SETTINGS ARE ON HIGH.
The reason we tell our clients this is because the material that you post on social media may be discoverable by the insurance companies and their defense attorneys. Many times in our practice we have seen Defense attorneys ask for not only posts and photos related to your incident but also login names and passwords.
Indiana STATE law is undecided on the release of this information, though a variety of other courts have held conflicting opinions on the subject.
In Indiana state court such information is discoverable (and thus must be produced) on: “any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” Indiana Trial Rule 26(b)(1).
That description is expansive but there are a few other rules which limit Trial Rule 26(b)(1). The requested material “shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought or; (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Additionally, Trial Rule 34 requires that any requested material be “described . . . with reasonable particularity.” Defense cannot go on a “general finishing expedition.” Canfield v. Sandock, 563 N.E.2d 526 at 529-531(Ind. 1991).
There have been courts outside of Indiana who have addressed this issue directly. Many have found the simple fact that a claimant has had social communications is not necessarily probative of the issues in the case. See Rozell v Ross-Holst,2006 WL 163143 (S.D.N.Y. Jan. 20, 2006). They have also found that there is no general right to have access to an entire Facebook account and such a request is no different than requesting the right to search through a party’s entire house, office, or wherever making the request a “fishing expedition”. See also, McCann v. Harleysville Ins. Co. of New York, 78 A.D.2d 1524 (N.Y. A.D. 2010)(Defendant “failed to establish a factual predicate and essentially sought permission to conduct a fishing expedition into plaintiff’s Facebook account based on the mere hope of finding relevant evidence which is not allowed); Tompkins v. Detroit Metro. Airport, No. 10-10413, (E.D. Mich. Jan. 18, 2012)(Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view and engage in the proverbial fishing expedition, in the hope of finding something on a Facebook account).
A Different result is seen in several cases Southern and Northern District Court of Indiana cases which have ruled on “emotional distress” claims, i.e. claims where a person is claiming emotional or mental damages from the Defendant. The courts in those various cases held that the nature of the emotional distress claim allowed ALL material on social media from the date of the incident forward to be discoverable. The court also held that just because your social media site is “locked” or “private” does not mean it is shielded from discovery. E.E.O.V. v Simply Storage Management, LLC, 270 FRD 430 (2010); D.O.H. Ex rel Haddad v Lake Central School Corp, 2014 WL 174675; Higgins v Koch Development Corp, 2013 WL 3366278; Appler v Mead Johnson & Co, LLC, 2015 WL 5615038.
As can be seen above, courts have gone several directions on the issue but, as with all things, it is better to be safe than sorry. If you have a claim or a lawsuit pending, try to minimize posts to social media and if you do post to social media, DO NOT write about anything related to the claim or the lawsuit. It is also important to make sure your security settings are turned all the way up to prevent the insurance companies from getting information informally just by looking you up. Lastly, don’t friend strangers on Facebook or other social media sites after a claim or lawsuit has been started. That person may be an investigator or member of the insurance company hoping to get a look at your private posts and use them against you at trial.