Written by: Jesse Minc Portrait Jesse Minc
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Among the most important parts of any personal injury or medical malpractice case is the “discovery” process.  “Discovery” refers to the exchange of information relevant to the claims in the case between the parties.  The discovery process is how the evidence that will be used at trial is created. Among the evidence that can be – and quite often is – turned over in the discovery process and used at trial are photographs of the plaintiff’s condition after an accident, including those posted to a privatized social media account.  These photographs can be used by the plaintiff to impress upon the jury the devastating impact of their injuries, thereby supporting the plaintiff’s claims of damages if they show that the plaintiff must walk with a cane or is in a wheelchair, for example.  These photographs can also be used by the defense to demonstrate that the plaintiff’s injuries are not as bad as the plaintiff claims they are if they show that, shortly after an accident, the plaintiff was out and about and did not appear physically injured, for example.  Obviously, what is depicted in photographs will determine whose side – the plaintiff’s side, or the defendant’s side – will benefit from this important evidence of damages.

In today’s world, many people post an incredible amount of information about their lives to various social media platforms.  To many plaintiffs’ lawyers’ dismay, personal injury victims also participate in social media, posting information (including photographs) relating to their injuries and the facts of their case, often to the serious detriment of their cases.  Despite lawyers’ warnings, clients inevitably forget, or even deliberately ignore their lawyers’ instructions, that any photographs that are posted to social media can be used against them in court.  Even though social media is a relatively new phenomenon in our society, examples of errant social media posts which have seriously reduced the value of personal injury cases are abundant.  Even when a plaintiff is truly injured, a photograph of them enjoying a moment of levity with family or friends – even if it is the only moment since their accident that they have actually enjoyed, or the only time that they have been able to fight through their pain to leave the house, put on a smile and have even a moment’s worth of fun – can devastate their claims.  Our attorneys always counsel clients to completely cease use of social media platforms during the pendency of their cases, and for good reason.

Forman v. Henkin, a unanimous decision in which the Court of Appeals held that any material – and especially photographs – posted to social media accounts that has any rational relationship to the claims in the case must be turned over to the other side in the discovery process.  Although social media materials were generally considered to be discoverable before the Forman decision came down last month, there is now absolutely no doubt of the state of the law when it comes to the discoverability of social media posts in personal injury and medical malpractice litigation.  Now, it is crystal clear that anything that is arguably relevant to a case must be turned over.  Even if your personal injury lawyer tries to protect your case and fight off the demands of defendants eager to get their hands on your social media content, the Forman decision almost assures that this will be a losing battle no matter how skillful your lawyer may be.

For this reason, if you are injured in an accident, or are a victim of medical malpractice, you should immediately cease the use of your social media accounts if you intend to bring a claim against those responsible for your injuries.  If you absolutely cannot resist using social media, at the very least you should avoid posting anything – whether it be photographs, comments, videos, or any other materials – that relates in even the most tangential manner to your lawsuit.  This simple, common-sense advice might ultimately save you from losing out on substantial amounts of compensation to which you might otherwise be entitled in your case.

To learn more about the use of social media evidence in New York personal injury and medical malpractice lawsuits, contact the expert personal injury lawyers at Jesse Minc Personal Injury Law today by submitting an online request form, or by calling us directly at (718) 354-8000.

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