Courting Justice: Be Careful Of What You Put On Facebook

May 29, 2013

By Robert N. Hunn

One of the hottest topics in civil litigation these days is whether a defendant can require an injured plaintiff to provide him with the plaintiff’s username and password in order to access his or her Facebook page.

A defense attorney will often seek this information in hopes of finding a picture or a comment made by you that is inconsistent with the injuries you are claiming in your lawsuit. Let’s say you are claiming an injury to your back as a result of a car accident. A defendant could seek access to your Facebook account to see if you have recently posted pictures break dancing or water skiing on Moosehead Lake.

Currently, the courts are divided on whether to permit a defendant access to your Facebook page. Unfortunately for the plaintiff, a larger number of courts are allowing the defense to see your Facebook posts. What’s worse, even if you maintain every privacy setting there is on Facebook, it may not matter. A court may still order you to disclose your password and allow the defense to see everything.

Look, if you are claiming a back injury, but recently posted pictures of yourself doing the Harlem Shake, I don’t want to represent you. But I don’t think unfettered access to a person’s Facebook page is the right answer. Too often, certain comments and certain pictures can be taken out of context. There needs to be some type of safeguard put into place to ensure that there is no undue prejudice to the plaintiff.

Of course, the easy answer is that if you are seriously injured, stay off of Facebook. Period. I know it’s hard, but you can do it.