WARNING! Be Careful What You Post

Do you have a Facebook, MySpace or other social networking account? Could anything on your site be considered inconsistent with the claims in your lawsuit? Have you posted anything that you would be embarrassed to talk about in open court if your case goes to trial? Do you believe that your postings are private — only available to those you allow access — so the insurance defense lawyer can’t get them? If you answered “yes” to any of these questions, please continue reading.

Kathleen Romano’s personal injury case made headlines when the judge ordered her to deliver a signed consent allowing the defense access to her current and historical Facebook and MySpace pages, including postings and other information she thought was private. Ms. Romano alleged in her lawsuit that she suffered “serious permanent injuries” when she sat on a defective chair manufactured by Steelcase Inc. that caused her to fall. Her claimed injuries included herniated discs, restricted motion in her neck and back, progressive deterioration, pain and loss of enjoyment of life. Ms. Romano also claimed that she had been “largely confined to her house and bed” since she fell. However, the defense lawyers in her case found her Facebook profile photo showed her standing outside of her house “smiling happily” and other content that indicated she had recently taken a trip to Florida.

The judge ruled that because “the public portions of [Ms. Romano’s] social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence, such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense….” The judge ordered Ms. Romano to give the defense access to her private postings to look for other information to attack her claims. The judge ruled that Ms. Romano had no reasonable expectation of privacy online.

You should expect that the insurance defense lawyers in your case are checking social networking sites for information they can use against you. You should assume that if the insurance defense lawyers ask, the judge in your case will give them access to your private postings. Don’t be surprised if the defense lawyers in your case ask for and receive access to postings that you deleted from your site. Here’s a good rule to follow before posting: “Assume anything you post can and will be used against you in a court of law.”

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