Evidence in the Age of Technology and Social Media

I’ve previously spoken on this blog about how Facebook and social media can affect your personal injury claim and/or lawsuit.  It is well established that insurance companies and defense attorneys will examine your Facebook profile if it is open to the public.  They will use anything to their advantage to discredit you or your case.  Examples of ways in which your social media can effect and harm your personal injury claim:

  • Pictures or descriptions of yourself going to the gym or for a jog while claiming disability (even if it is rehab and stretching exercises, it looks bad);
  • Pictures or descriptions of yourself doing work (even if unpaid) while making a claim for lost wages or loss of earning capacity (for instance, helping a friend move or doing remodeling work on your home);
  • Recently, I heard about a case where the witness was discredited because the defense counsel found out that the plaintiff and witness were Facebook friends.

It is also commonplace these days during discovery for defense attorneys to request to subpoena cell phone records.  This can be used to establish when and if 911 was called following an accident; what friends or colleagues were called immediately following an accident; if a driver was texting at or around the time of an accident and whether that may have played a role in the incident.

While this seems pretty clear, I have read of recent cases in which Fitbit has been subpoenaed as evidence.  This one is a little less obvious but still very interesting.  Fitbit has been used in cases to discredit that an injury occurred.  In this case, the woman was alleging that she slipped and fell causing injury.  During discovery, the subpoena of Fitbit revealed that at the time of the accident, the woman’s heart beat remained absolutely constant and there was no evidence of trauma.  It was also used in a criminal case as an alibi because the defense attorney was able to prove that his client was asleep (via Fitbit) at the time he was allegedly causing a crime.

It is very important, more now than ever, that you protect your personal information while involved in a lawsuit.  Of course, this evidence can help a case as easily as it can hurt a case, but you want to be sure that there are no surprises in evidence or that a seemingly harmless post is not taken the wrong way by an aggressive defense attorney.