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Spoliation Can Spoil Everything

Posted on 04/30/2018

Over the past few weeks, I have written about how social media can negatively impact a personal injury claim. When I discuss this with people in person, sometimes the first reaction is: “Can I just delete everything?”

The short answer: NO.

The slightly longer answer: ABSOLUTELY NOT.

The reason? A legal issue called “spoliation of evidence” that can devastate a case.

When someone has an injury claim that could turn into a lawsuit, there is a duty to preserve relevant evidence. “Relevant” is legalese for anything that makes the facts needed to prove (or disprove) your case more (or less) likely to be true.

For example: You are claiming you were in an accident on July 22, 2016. On that day, you posted pictures of your wrecked car on Facebook with the caption: “Got in an accident today when someone blew through a red light. I’m not hurt at all but the car is probably totaled.” This is relevant to proving your claim because the post shows that you were in an accident and explains your version of what happened, and the pictures show the damage to your car. However, the post is also relevant to disproving your claim because your statement that you are “not hurt at all” is evidence against any injury claim you might make later.

Another example: You are claiming you can’t sit for long periods of time or lift more than 5 lbs. regularly, but you posted about your 10-hour road trip and have tons of pictures of you lifting and carrying your larger-than-average bulldog. Again, those posts are relevant because they tend to disprove your claims.

Your instinct might be to delete these posts, but that instinct is wrong. In fact, deleting social media content that’s relevant to your claim can make things much, much worse.

I have already written about how adjusters and insurance defense attorneys will scour an injured person’s social media accounts looking for memes, photos, or posts they could use against the person. If it turns out you deleted your account or removed something you had a duty to preserve, that is spoliation of evidence. It can lead to very serious – even fatal – consequences for your lawsuit. The jury might be told it can assume the things deleted were bad for your case. Depending on the facts, the judge might even tell the jury to assume you’ve admitted something that ruins your claim. And in some circumstances, deleting information from social media could lead to staggering financial penalties being imposed on you personally. For those reasons, deleting an account or specific content will not fix the problem with harmful posts – it will only make it worse.

So, what can people do? Ideally, nothing would be posted online during a pending claim. But this is 2018 and injury claims can last for years at a time – that’s a long time to keep profiles open without posting anything. With that in mind, if people do decide to post online – even knowing how harmful it can be – it’s important to remain aware that anything they say online can be used against them.

Privacy settings are key in today’s world of social media. A public profile can be easily mined for everything on it. While strict privacy settings won’t completely eliminate the other side’s ability to get at someone’s posts, they will make it more difficult. People can also protect themselves by downloading a complete copy of all their Facebook content. If the injured person or his lawyers have a copy of that information, it can be used to show the relevant evidence still exists and work as a backup copy if the other side cries spoliation.

Bottom line, the potential consequences of deleting social media posts are too dangerous to risk. Although the things people put on social media might hurt the value of a claim, spoliation of evidence (the fancy word for deleting those posts) is far worse.

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