For the last decade, plaintiffs in catastrophic injury cases have been told by their lawyers — usually too late — to “be careful what you post.” It is reasonable advice, but it understates the problem. Insurance defense firms have moved past casual review of public profiles. They retain digital forensics vendors. They subpoena platform records. They build timelines from check-ins, geotags, and metadata. And by the time a plaintiff sits for deposition, the defense often knows more about the plaintiff’s online life than the plaintiff remembers about it.
This essay is a practical guide for plaintiffs’ trial lawyers on how to deal with social media surveillance — at intake, in discovery, in deposition preparation, and at trial. It is not a comprehensive ethics treatise. It is a working playbook.
What the carriers are looking for
The defense is not, in most cases, looking for a smoking-gun video of the plaintiff doing backflips. That happens. But the more common goal is incrementalism: small inconsistencies that, accumulated, undermine credibility on damages.
A photograph at a wedding two years post-collision. A check-in at a music venue six months after a back surgery. A vacation post that doesn’t square with a deposition answer about pain limitations. Carriers package these for the jury not as proof the plaintiff is malingering, but as proof the plaintiff is “not as injured as claimed.” It works.
The point is not catching a fraud. The point is shaving 30 percent off the damages number by reframing the plaintiff’s life.
Intake: the first conversation about social media
The most important conversation about social media happens at the first intake meeting. Not the day before a deposition. Not after a friend tags the client in a photo at a barbecue. At intake.
The conversation has three parts. First, a clear and documented audit of every account the client has — public, private, archived, abandoned. Second, an explanation, in plain language, of why the defense will look at all of it and what they will do with what they find. Third, written instructions, signed by the client, on what to post and what not to post for the duration of the case.
I have stopped relying on “be careful” as an instruction. It is too vague. Instead the instruction now reads:
- —Do not post photographs, videos, or written descriptions of physical activities, travel, or social events for the pendency of the case.
- —Do not delete existing content. Deletion may constitute spoliation and will be presented to the jury as consciousness of guilt.
- —Do not change privacy settings without first speaking with counsel.
- —Do not accept connection requests from people you do not personally know.
The client signs this. It becomes part of the file. When the defense raises an issue, the document is the answer to the question the carrier never asks but the jury wants to know — “did her lawyer warn her?”
Discovery: what defendants will ask for
Modern defense discovery requests almost always include broadly worded social media demands. The right response is rarely a blanket objection. Courts increasingly find such objections unpersuasive. The better response is a calibrated objection that preserves the privacy interest while producing the relevant material.
The framework I use is built around three filters: relevance, time period, and platform-specific scope. A request for “all posts, messages, photographs, and other content on all social media platforms” is overbroad. A narrowed production — posts after the incident, related to physical activities, on the platforms used by the plaintiff — is defensible and, in my experience, accepted.
Deposition: anticipating the impeachment
The defense will not telegraph what social media content they have. They will let the plaintiff answer questions about activities, then circle back with the impeachment material. Preparing the plaintiff for this — not by suggesting what to say, but by reviewing what is out there together — is critical.
The most damaging deposition I have ever defended was not against a malingerer. It was against a client who had genuinely been doing well one specific weekend and had posted about it, and who, in deposition, gave a description of her recovery that was technically accurate but tonally inconsistent with what the photograph showed. The fix is not coaching. The fix is preparation that lets the client say, accurately, “yes — I had a good day; that doesn’t change what most of my days are like.”
Motions in limine and judicial limits
Most courts will not categorically exclude social media at trial, but many will limit it. A motion in limine framed around prejudice, completeness, and the rule against unfairly cumulative evidence is often the right move. I do not move to exclude everything. I move to exclude the framing — the “look how much fun she’s having” theme — and to require the defense to introduce the underlying content with proper foundation and context.
At trial: defusing without conceding
The defense will use the social media content in cross. The right response on direct, and in closing, is not to ignore it. It is to acknowledge it, contextualize it, and make the jury see what the post is and is not.
A wedding photograph is not evidence of recovery. It is evidence that the plaintiff went to a wedding. A vacation post is not evidence of pain-free living. It is evidence of a four-day trip on which the plaintiff took medication, sat down often, and went to bed early. The jury hears this differently when they hear it first from us.
Practical takeaways
- —Document the social media conversation at intake. Sign the client to instructions. Put the document in the file.
- —Do not delete. Lock down. Preserve. The spoliation risk is real and the jury impact is worse than whatever was on the post.
- —Respond to social media discovery with a calibrated production framework, not a blanket objection.
- —Prepare the client to handle the impeachment in deposition by reviewing the content together — not by suggesting answers.
- —Use motions in limine to limit framing and require proper foundation, not to exclude wholesale.
- —At trial, get to the social media content first. Acknowledge it, contextualize it, and reframe what it actually shows.
The defense’s surveillance program is sophisticated. It also depends on us being unprepared. We are not, as a profession, particularly good at the digital side of trial practice. The lawyers who get good at it — and treat it as a discipline rather than an afterthought — will recover meaningfully more for their clients than those who do not.
— Joseph Younes, Advocate Magazine, 2025
