May 2011 - Motorcycle Rider News

The Legal Implications of Information
Posted On Social Networking Sites
I may be the only person
left alive who does not
have a Facebook page.
After reading this article,
you may understand why I
prefer not to.
With the rise of social networking
sites such as
Facebook, MySpace, and
Twitter, insurance companies
and their attorneys
By Melissa Winthers
are using these sites to discovery as much
information as they can about people claiming
injuries and use it against them.
In a recent New York case, the Court found
that a woman who claimed serious injuries
after a fall had to provide the defendant with
access to the private parts of her MySpace and
Facebook accounts as part of the discovery
process. The Court commented on the fact that
the woman's publicly posted information
revealed that she had an active lifestyle and
could travel and engage in physical activities
despite her injury claims. Its rationale for
requiring this disclosure was that plaintiffs
who place their physical condition in controversy
may not shield from disclosure material
which is necessary to the defense of the action.
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In so deciding, the Court made the comment
that permitting a person claiming substantial
damages for loss of enjoyment of life to "hide
behind self-set privacy controls on a website"
risks depriving the opposing party of information
necessary for a fair trial. Not only did this
New York Court require the woman to provide
the private parts of her social networking
accounts, it required her to provide all deleted
pages.
While there is no Colorado case on-point,
one has to assume that anything posted on a
social networking site could be ordered to be
produced. Recently, in my own practice one
defense attorney argued that my client had to
provide his social networking login information
and account passwords. The case was
resolved for the policy limits before motions
were filed on this issue.
Once injured, individuals are required to provide
the private parts of their social networking
sites, this also exposes the confidential information
of their family and friends who have
posted private information on the injured person's
site. In addressing the question about
whether anyone who posts to a social networking
site has a reasonable expectation of privacy,
the New York Court cited several commen-
tators regarding privacy and social networking
sites stating that, "[G]iven the millions of
users, 'in this environment, privacy is no longer
grounded in reasonable expectations, but rather
in some theoretical protocol better known as
wishful thinking.'"
In light of the above, I advise my clients to
only post information that they would not mind
the opposing insurance company seeing. I ask
them to refrain from posting any
information/photographs about the status of
their case, their injuries, physical activities that
they may participate in such as going skiing,
going four wheeling etc, or any information
showing them engaging in risky activity such
as getting drunk or using any illegal drugs.
While I would argue for the exclusion of anything
posted under a privacy protection setting,
it is unclear how Colorado Judges will view
this issue. As is the case so often in litigation,
an ounce of prevention is worth a pound of
cure.
Melissa Winthers is an attorney at Fleishman
& Shapiro P.C. She can be reached at 303-
861-1000 or mwinthers@colorado-law.net.
She represents motorcyclists who have been
injured in collisions.
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MOTORCYCLE RIDER NEWS—ENTERTAINMENT MAY 2011
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