Social Media Evidence as Impeachment
Pursuant to the Georgia Civil Practice Act, parties are entitled to the discovery of “any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . .” O.C.G.A. § 9-11-26. Our firm has successfully argued that content posted by plaintiffs to their social media accounts after a motor vehicle accident is subject to this provision.
Such content has included photographs of a plaintiff smiling and jumping spread eagle into the air two (2) weeks before his deposition in which he testified that he could not walk more than a few blocks without pain. It has included a Facebook post of “I’m feeling so fantastic today!” the same day that a plaintiff reported to her chiropractor with moderate-to-severe pain complaints. Other content has included photographs of a still-injured plaintiff participating in a post-accident Muddy Buddy Run (a 3-4.5 mile long running race in which buddies work together to climb, jump and crawl through 8-10 obstacles).
Many plaintiffs readily turn over post-accident social media content, acknowledging that it is as discoverable as post-accident vacation photographs and diaries. However, other plaintiffs have been resistant to the idea of producing content that they assumed was privately shared. Just because a plaintiff’s social media profile is controlled by privacy settings does not render the content protected. Judge Eddie Barker in Douglas County has noted that a plaintiff’s posting of information and photographs as to his or her daily activities is no different than a plaintiff telling a neighbor what’s been going on. Insofar as the neighbor would be subject to deposition regarding such conversations, Judge Barker reasoned that a plaintiff’s private social media posts were similarly subject to production.
While Georgia appellate courts have not weighed in directly on the discoverability of social media, the issue is not novel in any way. Social media content is simply a new format in which individuals communicate.
It is important to remember that social media cuts both ways. While we would typically argue that a defendant’s social media content is not likely to be relevant to any issue in a standard automobile accident case, it could become relevant depending on the issues at play. In disputed fault and DUI cases, plaintiffs could theoretically obtain access to such postings. As such, defendants are well-served by curtailing most, if not all, social media activity during the pendency of litigation.