Social Media After a Car Accident: What Not to Post

Searching a claimant's social media is a standard step in injury claim handling. Adjusters and investigators look at every platform under the claimant's name and the names of household members, record what is public, and set alerts for new posts. In litigation, the defense attorney serves discovery requests for social media content, and courts in every state have ordered production of private posts, photographs and messages when they are relevant to the physical condition, activities or emotional state the claimant has put at issue. A claim for pain and limitation puts your activities at issue.

What they are looking for is any image or statement inconsistent with the claim. A person claiming a back injury photographed lifting a child; a person claiming they cannot work shown at a concert; a person claiming depression after the crash shown laughing at a party; a person who said at deposition they cannot travel checked in at an airport. None of it proves the injury is false, and all of it is used as if it did, because insurers value claims on the risk that a jury will see those images.

They also look for statements about the crash itself. A post the night of the crash saying you were not hurt, a comment that you were running late, a message blaming yourself, an argument with the other driver in the comments, a photo of the damage with a caption, all become evidence on fault and injury, quoted back at you in negotiation or at deposition.

Physical activity is the first category. Any image of you exercising, dancing, hiking, playing with children, carrying anything, or doing yard work, taken after the crash, is used to dispute the injury. The defense does not need the image to show the activity caused pain; it needs the jury to see you doing it. Context, that you paid for it for days afterward, that it was a single moment, that the photo was staged, is lost on the image.

Travel and events are the second. Vacations, weddings, parties and concerts are used to argue that you were well enough to enjoy life, which contradicts a claim for loss of enjoyment of life, and well enough to travel, which contradicts a claim for limitation. A check-in or a tag by a friend is as damaging as your own post.

Statements are the third. 'I'm fine, just shaken up' the night of the crash is quoted against a claim for an injury that appeared the next day. 'Totally my fault, wasn't paying attention' is an admission. A joke about the claim, a comment about what you plan to do with the settlement, or a remark about your attorney or the insurer is used to argue the claim is about money. And anything written in anger at the other driver is read to the jury.

Suppose you were rear-ended and suffered a shoulder injury requiring surgery, with four months of restriction on lifting and overhead activity. Three months after the crash, your sister's wedding took place, and a cousin posted a photo of you on the dance floor with your arms raised, tagged with your name. You had danced for one song, in pain, and spent the next day on ice.

In your deposition the defense attorney produced the photo and asked you to describe the shoulder's limitation. The treating surgeon's records documented the restriction and the surgery; the photo documented one moment. The defense's settlement position dropped by a third on the photo alone, and the insurer's representative at mediation referred to it in every round.

The photo did not change the injury, and the claim settled on the medical evidence, but at a figure that reflected the risk that a jury would weigh the image more than the records. Had you asked family not to post photos of you during the claim, or had the cousin not tagged you, the photo would not have surfaced. All figures are hypothetical; the single photo that costs a claim a third of its value is a common story.

The rules are restrictive, and they are restrictive because the cost of a single post is so high.

• Post nothing about the crash, the injury, the treatment, the insurer, the claim or the attorney, on any platform, for the duration of the claim.
• Post nothing showing physical activity, travel, events or anything that could be read as inconsistent with the injury, even if it was painful or brief.
• Set every account to the most private setting available, and assume that private content can still be obtained in litigation.
• Do not accept new friend or follow requests from people you do not know during the claim; investigators use them.
• Ask family and friends not to post photos of you or tag you, and to decline investigators' requests, politely.
• Do not delete existing posts, photos or accounts after the claim begins; deletion can be sanctioned as destruction of evidence. Tell your attorney what exists instead.
• Do not message the other driver, their family or their insurer through any platform; everything is recorded.

The discovery of social media in injury litigation is governed by each state's civil rules and by case law that has developed in every state along similar lines: public content is freely usable; private content is discoverable when it is relevant to the claims and defenses, and the party seeking it must usually show some basis, often from the public content, for believing the private content is relevant; and fishing expeditions through an entire account are refused in most courts. The practical result is that a public post showing activity opens the door to the private account.

Destruction of evidence, or spoliation, is sanctioned under every state's rules once litigation is pending or reasonably anticipated, which for a social media account means from the time a claim is made or an attorney retained. Sanctions range from an adverse inference instruction, telling the jury the deleted content would have been unfavorable, to dismissal in extreme cases. Deactivating an account is treated differently from deleting content in some courts, and an attorney advises on the specific step.

Insurers' use of social media in pre-suit claim handling is not regulated in most states beyond general privacy and unfair claims practices law, and investigators' use of fake profiles to gain access has been addressed by bar ethics rules for attorneys but not consistently for insurers. Deadlines for the underlying claim are the state's injury statute, one year in Tennessee and Kentucky, two in Texas, California, Florida and Georgia, three in New York and North Carolina.

Direct messages are discoverable as readily as posts, and messages with the other driver are evidence of whatever was said. An apology, an agreement to handle it without insurance, an exchange about fault, or an argument are all produced. If the other driver contacts you, do not respond beyond providing insurance information, and keep the message.

Photographs you take of the crash scene, the vehicles and your injuries are valuable evidence and should be kept and provided to your attorney, not posted. Posting them invites comments, speculation and the other driver's response, all of which become part of the record. The photos' metadata, their date and location, is preserved by keeping the originals.

Fitness trackers, step counters and location history are the newer frontier: a fitness app showing a workout the week after the crash, or a phone's location history showing a trip, is discoverable in litigation when relevant, and defense attorneys request it. Do not delete it, but understand that it exists.

Social media is reviewed by the insurer from the first days of a claim and by the defense throughout a lawsuit, and the damage from a single post or photo is routinely larger than any other avoidable harm to a claim. The questions to answer early are what already exists on your accounts, who else posts about you, and how to stop the flow without deleting anything. An attorney reviews existing content as part of evaluating the claim.

Ask Legal Matters is a free claim-review request service, not a law firm. Requests may be shared with independent attorneys and legal services partners who handle inquiries in your state, and an attorney must evaluate the facts before anyone can say what the claim is worth. If you have an injury claim and are unsure what the insurer can see, you can request a free claim review.

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Need local rules? Choose your state from the injury law guides hub or read the statute of limitations by state.