Personal injury litigation is always deeply interconnected with what is happening in society. Torts that could not have been conceived of just a couple generations ago, such as “wrongful birth” (for mistakes in prenatal testing) or “bullying” (based on new anti-bullying laws) are now very much a part of the legal landscape. So it is not surprising that Facebook and similar social media sites have now crossed into the world of personal injury law.
Last week, a Facebook post resulted in a court throwing out an $80,000 settlement, because the plaintiff and his daughter breached the terms of a confidential agreement when the daughter boasted about it on Facebook. Just a few days after the case settled, the plaintiff’s college-age daughter posted to approximately 1,200 Facebook friends that her parents “won the case … Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” Gulliver Sch., Inc. v. Snay, 2014 Fla. App. LEXIS 2595 (Fla. Dist. Ct. App. 3d Dist. Feb. 26, 2014). Because the case had settled, the case was voluntarily dismissed by the parties. The defendant then refused to pay the plaintiff’s $80,000 settlement amount, on the ground that the daughter’s post violated the confidentiality provision in the agreement, and showed that the plaintiff himself had violated it, by telling his daughter about the settlement, in direct violation of the confidentiality provision. Because of this breach of the agreement, the Court of Appeal of Florida concluded that the defendant was not obligated to pay the $80,000.
“Privacy settings” on Facebook do not mean that your posts are confidential, especially if you are involved in a lawsuit. In McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (Pa. County Ct. 2010), the plaintiff, Bill R. McMillen, Sr., sought damages for injuries sustained when he was rear-ended during a “cool down lap” following a stock car race. Accessing only the public portion of his Facebook page, the defendants discovered posts that allegedly showed that McMillen had exaggerated his injuries. The defendants then requested access to McMillen’s Facebook and MySpace user names and passwords, contending that private areas to which they did not have access could contain evidence relevant to his damages claim, specifically, whether he had made comments which contradicted his disability and damages claims. In ordering McMillen to provide such access, the judge concluded that “no person choosing MySpace or Facebook as a communications forum could reasonably expect that his communications would remain confidential, as both sites clearly express the possibility of disclosure.” In his decision, he also wrote that “the search for truth should prevail” and that gaining access to McMillen’s private posts “could help to prove either the truth or falsity of” his claims.
Social media sites can be wonderful platforms for finding and staying in touch with friends, sharing photographs, letting people know what you are doing, and even sparking political and other types of discussions. They can be fun, entertaining and educational. But when you are a party to a lawsuit, it is time to change your approach to social media. Some attorneys believe that no social media usage should occur at all when litigation is an issue; others believe that a limited, discrete approach is possible. Either way, common sense and a frank discussion with your attorney will help identify the best approach to social media sites. If you are serious about your case, don’t be your own enemy by letting social media destroy it.