Why Social Media Posts Reduce NJ Personal Injury Damages — Risks You Must Avoid

PERSONAL INJURY LAW · SONG LAW FIRM COLUMN

## Situation

Personal-injury plaintiffs in New Jersey are increasingly watching their claims lose value because of a single Facebook photo, a TikTok reel, or a restaurant check-in. Defense attorneys and insurance adjusters now treat social-media surveillance as a routine, low-cost investigative step. Investigators begin collecting a plaintiff's public content on the day the claim is filed and continue monitoring throughout the case, hunting for any image or caption that suggests the injuries are not as severe, painful, or disabling as pleaded — and that a jury can be shown to prove it.

## Legal Concept

Damages in a New Jersey personal-injury case are calculated on the plaintiff's pain, functional limitations, and how long those limitations persist. Under New Jersey Rule of Evidence 901, a social-media post becomes admissible once it has been authenticated — through metadata, the plaintiff's own admission, or testimony from a witness who can confirm the account and the posting. A single laughing photograph is not a legal confession by itself, but it is more than enough to erode credibility with a jury, and credibility drives the calculation of non-economic damages — pain and suffering, loss of enjoyment of life — more than any medical exhibit an expert can produce.

## NJ Rules

New Jersey courts treat social-media content as ordinary discoverable material. Private accounts on Facebook, Instagram, and TikTok are not immune: once the requesting party shows relevance, judges routinely order production of screenshots or full account downloads. The persuasive authority most commonly cited is McMillen v. Hummingbird Speedway, Inc. (Pa. Ct. Com. Pl. 2010), which held that a plaintiff has no reasonable expectation of privacy in material shared with even one "friend." The federal Stored Communications Act, 18 U.S.C. §2701, bars the platform itself from turning over content directly to a third party without the user's consent, so opposing counsel serves the discovery request on the plaintiff instead. Refusing to comply — or quietly deleting content between the request and the response — can trigger sanctions and adverse-inference instructions to the jury.

## Practical Response

Do not delete anything after an accident. New Jersey recognizes spoliation of evidence as a serious litigation offense; the trial court can issue an adverse-inference jury instruction under Model Jury Charge 1.20, strike related testimony, or, in extreme cases, dismiss the claim outright. The correct workflow is: (1) preserve every existing post, message, tag, and check-in — do not deactivate or delete the account itself; (2) switch every profile to the strictest privacy setting available and stop posting entirely until the case is concluded; (3) decline every new friend, follower, or connection request from anyone you do not know personally; (4) ask family members not to post photographs of you, tag you, or check you in at events; and (5) disclose the full list of accounts, usernames, and posting history to your attorney so a formal litigation-hold letter can be issued. Screenshots of suspicious friend requests from unfamiliar profiles should always be preserved and forwarded to counsel.

## Common Misunderstandings

The most common myth is that a "private" account is somehow safe from litigation. It is not: relevance, not the privacy setting, controls discoverability in New Jersey. A second myth is that deleting borderline posts before the insurer notices them is harmless housekeeping. Once litigation is reasonably foreseeable, deletion is spoliation, and forensic recovery of the original post — combined with the documented fact that it was deleted — is often more damaging than the underlying content ever was. A third myth is that adjusters cannot see private content at all. New Jersey Advisory Committee on Professional Ethics Opinion 735 forbids lawyers and their investigators from sending pretextual friend requests to a represented party, but that opinion leaves them free to view anything publicly posted, and off-record surveillance by non-lawyer insurance adjusters — including data-broker searches and archived screenshots — remains a documented industry practice that current ethics rules do not directly address.

## Key Takeaways

• Stop posting the moment you are injured, and do not resume until the case has closed.
• Preserve everything already online; do not delete or deactivate the account.
• Set every account to the highest privacy level and decline unknown requests.
• Ask friends and family not to tag or photograph you during recovery.
• Give your attorney a complete list of accounts and usernames.

## FAQ

**Q1. Can I delete a post I now regret?**

Not on your own. Once an accident has occurred and a claim is contemplated, deletion can be treated as spoliation and expose you to an adverse-inference instruction. Consult counsel before touching any post, message, or photo album.

**Q2. What if an insurance adjuster sends a friend request?**

Do not accept it, screenshot the request, and forward it to your attorney. Under New Jersey ACPE Opinion 735, a pretextual request from an attorney or the attorney's agents may be an ethical violation and useful evidence for your side.

**Q3. Are pre-accident posts also discoverable?**

Yes, if they are relevant to the injuries claimed or the activity limitations alleged. Courts have compelled production of posts going back several years when a chronic-condition or activity-level dispute is involved.

**Q4. Should I deactivate my account entirely?**

No. Deactivation followed by loss of content can itself be treated as spoliation. The safest step is a strict privacy setting combined with a posting freeze — not a shutdown.

**Q5. Where can I direct a question?**

Phone 201-461-0031, email info@songlawfirm.com, KakaoTalk songlawfirm, website songlawfirm.com.