When we are talking about social media, whether it’s wrongful death or some other type of lawsuit, especially when pain and suffering damages are being sought, one should be careful about what is posted on social media that may compromise their case.
I advise my clients not to use social media while involved in a lawsuit. If it is necessary to do it, to make posts, then they should be very careful not to post anything about the lawsuit itself, and if they are seeking some kind of recovery like pain and suffering, emotional distress, grief and sorrow, like in a wrongful death lawsuit, then they don’t post anything that would negatively impact those claims or contradict what they are saying in their pleadings.
In terms of pain and suffering, if the plaintiff says they can no longer walk and they post a video of themselves dancing that would not be wise. But, my advice is, as a general rule, that it is better not to post anything on social media about the case before the case, nor after the case if the settlement is confidential.
Confidential settlements and social media
Very often the terms of the settlement are confidential. In that case, then certainly you would advise your client not to post anything about the settlement at all on social media ever or they may violate the confidentiality agreement.
There was a time where the daughter of the prevailing plaintiffs posted too much about the settlement and they had to give the money back. All she posted was that the defendant, and she named them, was paying for her European trip this summer. That was enough to make the parents have to give the money back.
It’s a serious risk, and you don’t want to talk about it at all. You should remind children or anyone else who might have knowledge about the case not to say anything about it, anywhere, ever.
Non-removal of existing social media posts that may compromise the lawsuit
There is a principle called “spoliation” of evidence or destruction of evidence. If you destroy evidence, you could potentially be sanctioned or the lawsuit could be dismissed. I would tell them to preserve whatever they do have on their social media, in order prevent being accused of destroying evidence.
They should make their social media private but also at the same time I would advise them not to post any more during the lawsuit. Then I would evaluate the case with the understanding that these posts that may be disclosed during the case are found.