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Personal Injury in Iowa: Social media users beware!

In this day and age, we all love to document our lives on social media. We upload pictures to Instagram, we connect on Facebook, we share our thoughts on Twitter, and we maintain conversations via Snapchat and other online sites. We think this information is private and password protected, especially those Facebook messages and twitter DMs --- but is it?

Insurance companies and their defense attorneys are becoming adept at requesting complete copies of social media information during the discovery phase of litigation. For example, we are encountering a number of discovery requests similar to this:

REQUEST NO. ___: An electronic copy of Plaintiffs complete Facebook history, including any and all profile information, postings, pictures, and data available pursuant to Facebook's "Download Your Own Information" feature.

We are also encountering requests for deactivated account information and requests for usernames and passwords. Insurance companies and defense attorneys want this information because they are fishing for any shred of evidence they can use to convince a jury you are not truly injured.

Imagine you are rear-ended and have a whiplash injury which flares up on occasion. As your case is pending, you decide you are not going to wallow in misery and you decide to continue living your life. You play a softball game with some friends. Unfortunately, you spend the rest of the weekend in pain and regretting the decision. Nonetheless, you mention in a private message with your mother that you played softball and a friend tags a photo of you. If this information - incomplete as it may be - is in the hands of a skilled defense attorney, your case may have just lost thousands of dollars in value. A jury may just see a picture of you playing softball and you will be left having to explain; you are now on the defensive.

Are Iowa courts allowing these overbroad and invasive requests? The answer is presently unclear. There are no Iowa appellate decisions on the issue. The federal Minnesota case of Holter v. Wells Fargo, 281 F.R.D. 340, may provide an indication that plaintiffs should beware. In deciding whether defense counsel was entitled to a whole Facebook account, the Holter court determined that plaintiff's counsel was responsible for downloading the Facebook information, searching for any information relevant to the issues of the case and producing the same. As small consolation, the Plaintiff did not have to produce passwords or to let the defendant do the searching.

The important take-away is that your private information may not be private. A plaintiff must be extremely cautious of what information is put on social media, especially during the course of litigation. Even if it is password protected, restricted from public viewing and intended as private, a simple message to your mother or photo tag may become an exhibit in front of a jury. If you were recently injured, it would be wise to seek the advice of a law firm experienced in personal injury claims and the dangers and pitfalls of social media.

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