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They will ask, and they may get some of it. What they generally cannot get, without a substantial showing, is direct forensic access to your phone or your accounts. Texas treats that as particularly intrusive, and a court usually requires proof that you defaulted on your discovery obligations before it will order it.
The more important warning is about what you do next. Do not delete anything: not a post, a photograph, an account or a message thread. Deleting material after a claim is contemplated can be treated as spoliation of evidence, and the remedy can be worse than the post. Call 713-521-0059 before you change anything online.
The defense can make two very different requests, and the rules for each are not the same.
The first is a request for content, where you are asked to produce your posts, photographs or messages about a particular subject. This is ordinary document discovery, and it is governed by relevance and by proportionality.
The second is a request for access, where you are asked to hand over the phone or to give an expert the login. This is a far more serious request, and Texas has a specific answer to it.
Usually not simply by asking for it. In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009) addressed direct forensic access to an opposing party’s electronic storage devices. The Texas Supreme Court described that access as particularly intrusive and said it should generally be discouraged.
Before ordering it, a court should require the requesting party to show several things:
The court noted that courts have been reluctant to rely on mere skepticism or bare allegations. It directed trial courts to protect sensitive information, to use the least intrusive means necessary, and noted the importance of a search protocol. In practice, a defendant has to show you failed to produce what you were obliged to produce. That is why deleting anything after a claim is contemplated can do so much damage to your case.
Not automatically. Setting an account to private does not make its contents privileged. Nothing in Texas law creates a social media privilege. Whether particular content must be produced turns on relevance and proportionality under the discovery rules, and on what claims you have made in the case.
A claim of physical impairment invites questions about your physical activity. A claim of mental anguish invites a broader inquiry, which we discuss on our page about therapy records.
These requests are usually built to support one of three arguments against your claim.
You are not as hurt as you say. Any photograph of you upright, outdoors or smiling can be offered for this, without context and often without a date.
Your account of the incident changed. A post written at the time of the incident is compared line by line with your deposition testimony.
Something else caused the harm. Posts about a job loss, a breakup or a family conflict are used to blame the emotional injury on something else. None of these is answered by hiding the material, because each is answered by context, by dates and by consistency.
Stop posting about the incident, your injuries and your activities. You may have nothing to hide, but a caption written to be funny reads differently on a screen in a courtroom.
Preserve everything, including what you would rather not keep, turn on any archive feature, and do not deactivate your accounts. Screenshots are not a preservation plan. Use the platform’s own data download tool, which captures dates and details a screenshot loses.
Tell your lawyer what is out there. A bad photograph your own lawyer knows about in the first week can usually be managed, but the same photograph produced by the defense at your deposition is much harder to explain.
Ask about a protective order. What you produce can be limited to the lawyers, restricted from further use, and returned or destroyed at the end. That is far easier to negotiate before production than after.
Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.
Deleting is the one mistake you can fully avoid, and almost everything else in this area can be argued about. Destroyed evidence can lead to a remedy against you, and it can turn an argument about a photograph into an argument about your credibility. Tell the people close to you as well, because a family member who takes down a tribute post or a photo album to protect you can create the same problem.
If you have already deleted something, tell us, and tell us early. It is a problem with solutions when it is known at the start, and much harder when it surfaces later. If you have not filed anything and are simply wondering what would be exposed, that is a reasonable question, and we will help you answer it before you decide anything.
Schiffer Law Firm is a Houston personal injury firm with 50 plus years of combined experience representing injured people and survivors across Texas.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Written by Jacob Schiffer, Attorney, Schiffer Law Firm. State Bar of Texas No. 24105175.
Call 713-521-0059.
Usually not simply by asking for it. In re Weekley Homes holds that direct forensic access to electronic storage devices is particularly intrusive and should generally be discouraged. It requires a showing that the responding party defaulted on its discovery obligations, among other elements. The court noted that courts have been reluctant to rely on mere skepticism or bare allegations.
Not automatically. Privacy settings do not create a privilege. Whether content must be produced turns on relevance and proportionality and on what claims you have made in the case.
No, you should not. Deleting material once a claim is contemplated can be treated as spoliation of evidence, and the remedy can be far worse than anything the post itself would have shown. Preserve everything, including what you would rather not keep.
Usually one or more of three arguments: that you are not as injured as you claim, that your account of the incident changed, or that something else in your life caused the emotional harm. Each is answered with context and dates rather than by removing the material.
Usually. A protective order can restrict production to the lawyers, bar further use, and require return or destruction at the end of the case. It is much easier to negotiate before production than afterward.
Tell your lawyer right away, before anything else is filed or produced. It is a problem with solutions when it is known at the start, and much harder to deal with when it surfaces later in the case.