Social media is everywhere and used by a majority of the population. Recent studies indicate that more users are not only accessing Facebook more frequently, but also that they are using it primarily on their mobile telephones. Part of this drive is due to Facebook features, such as the live video feed, that allows users to instantaneously document aspects of their lives. Running on a track team? Why not document that ten mile run you just did. Go to a concert? Why not post a live video of your favorite song. Being able to capture this kind of activity could be the key to settling a personal injury case or could provide useful material for trial, particularly if the claimed injuries appear dubious.
In one recent case, the plaintiff claimed that a low-speed car accident with no property damage caused a permanent arm injury that ultimately necessitated surgery. Facebook, however, provided a much different picture: the very same plaintiff posted live videos of reaching a personal weightlifting goal. The plaintiff was an amateur bodybuilder and had no trouble lifting 300 plus pounds. These videos were posted post-accident and were beneficial in the resolution of the matter.
Facebook provides many avenues for users to provide this type of personal information: personal messages, photographs, posts, and status updates. Documenting this kind of activity for use at trial may pose more of a challenge. Because Facebook material can be informative of a plaintiff’s physical or emotional state post-accident, plaintiff’s counsel are often reluctant to provide any social media documentation or even provide basic information such as the plaintiff’s profile name.
Georgia Courts have not yet established law to govern the parameters of what is discoverable. Judges often attempt to balance a plaintiff’s privacy concerns with providing relevant, discoverable documents to the defendant. Some Metro-Atlanta Courts have ordered plaintiffs to produce only the public information that they post, while others have allowed all social media material posted during a given a period of time. In order to pursue content posted to social media sites, work needs to be done early in discovery and pursued consistently.
If you have questions regarding how to pursue the discovery of social media in your case, please contact us.
About the Author Rachel Reed is an Associate at Mabry & McClelland, LLP. Her practice includes civil litigation with a concentration in defending premises liability and personal injury actions. She also practices within the areas of motor vehicle accidents and common carrier liability.
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