Erase Online History At Your Peril

If you have decided not to worry about how your social media antics might affect a disability claim litigation because you believe you could always delete your online history,  you’d better think again.

The ever-developing law on the meaning and use of social media in disability insurance litigation became more defined in a Federal District Court case which found that if and when the case goes to a jury, the jury would be given a “spoliation” charge by the court.  See Gatto v. United Air Lines, Inc., et als, 10-cv-1090-ES-SCM (U.S.D.C., NJ).

A spoliation charge tells the jury that a document that was destroyed by a party, even online, was evidence.  It further instructs the jury that it can infer that the party who destroys or prevents production of a document does so out of a fear that the contents of the document would harm that party’s case.

We warned readers about the dangers of going overboard on social media to impress friends or to express joy at a momentary easing of a medical condition. To Tweet Or Not To Tweet.  Being seen on the Internet doing something you say you can’t do for work, even if you do it for just a moment, can cause loads of heartache if you are pursuing a claim.

Insurance companies will jump on that moment’s indiscretion and try to build it into a mountain.  They will try to take that moment and build it into a 40-hour week, saying that the moment proves you can work at a job just like everybody else

In this case, plaintiff denied trying to intentionally destroy evidence, saying he deactivated his Facebook account because he had received notice that an unknown IP address had accessed it.  He failed to reactivate the account and after 14 days, Facebook, as was its policy, automatically deleted the contents of the account.  Plaintiff tried to reactivate the account after 14 days, but it was too late to save the data.

What’s to be learned from this is what we expressed in our earlier blog - Don’t create a problem in the first place by kidding around or trying to be macho on a social media page.  If you don’t do something silly that your adversary can use as evidence to hurt you, you won’t have to worry about it.

It is obvious that if you are in a litigation to be decided by a jury, the last thing you would want is an instruction to your jury that the jury may infer that if a document (or a video) was not produced by you at trial that you kept it back because of fear that the contents would harm your case, if produced.

With all the heartache a litigant usually has to go through to make good a claim against a disability carrier, the last thing on the list should be to try to redeem a moment’s fun on the internet which winds up being a trial disaster.