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They will ask, and some of it they will get. 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 requires proof that you defaulted on your discovery obligations before a court will order it.
The more important warning on this page is not about what they can see. It is about what you do next.
Do not delete anything. Not a post, not a photograph, not an account, not a message thread. Deleting material after a claim is contemplated is spoliation of evidence, and the remedy for it can be worse than anything the post itself would have shown.
A photograph of you smiling at a wedding is a defense argument. A deleted photograph of you smiling at a wedding is a jury instruction about destroyed evidence.
Requests for content. Produce your posts, photographs or messages about a subject. This is ordinary document discovery, and it is governed by relevance and by proportionality.
Requests for access. Hand over the phone, or give an expert the login. This is a different and far more serious request, and Texas has a specific answer to 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 court described such access as particularly intrusive and said it should generally be discouraged.
Before ordering it, a court should require the requesting party to show that the responding party defaulted on its discovery obligations, that the production was inadequate and a search could recover deleted relevant material, the particular characteristics of the devices and the expert’s familiarity with them, a reasonable likelihood that the proposed search methodology would yield the information sought, and that the benefits outweigh the burdens.
The court warned that skepticism alone is not sufficient and that courts should be reluctant to rely on bare allegations. It required the least intrusive means, protection of sensitive information and a clear search protocol rather than unrestricted expert authority.
Read what that means. A defendant does not get your phone by asking. It has to show you failed to produce what you were obliged to produce. Which is the reason the advice about deletion is not a formality.
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.
What that means practically: a claim of physical impairment invites discovery about physical activity. A claim of mental anguish invites a broader inquiry, discussed on our page about therapy records.
You are not as hurt as you say. Any photograph of you upright, outdoors or smiling will be offered for this, without context and usually without a date.
Your account of the incident changed. A contemporaneous post 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 attribute the emotional injury elsewhere.
None of these is answered by hiding the material. They are answered by context, by dates and by consistency.
Stop posting about the incident, your injuries and your activities. Not because you have something to hide. Because a caption written to be funny reads differently on a screen in a courtroom.
Preserve everything, including what you would rather not. Turn on any archive feature. Do not deactivate accounts.
Tell your lawyer what is out there. A bad photograph your own counsel knows about in the first week is manageable. The same photograph produced by the defense at your deposition is not.
Ask for a protective order. What is produced can be limited to counsel, 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 only unforced error here. Everything else can be argued about. Destroyed evidence produces a remedy against you and it converts an argument about a photograph into an argument about your credibility.
Screenshots are not a preservation plan. Use the platform’s own data download tool, which captures dates and metadata a screenshot loses.
Tell people close to you as well. A family member who takes down a tribute post or a photo album to protect you creates the same problem.
The first conversation is free, it is confidential, and it does not commit you to anything.
If you have already deleted something, say so, and say it early. It is a problem with solutions when it is known at the start. It is a disaster when it surfaces later.
If you have not filed anything yet and are simply wondering what would be exposed, that is a reasonable question and we will answer it plainly before you decide anything.
Schiffer Law Firm keeps a deliberately small caseload, in Houston and across Texas. There is no attorney’s fee unless there is a recovery.
Call 713-521-0059.
Not by asking. In re Weekley Homes holds direct forensic access to electronic storage devices is particularly intrusive and should generally be discouraged, and requires a showing that the responding party defaulted on its discovery obligations, among other elements. Skepticism alone is not sufficient.
No. 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. Deleting material once a claim is contemplated is spoliation of evidence, and the remedy for it can be far worse than anything the post itself would have shown. Preserve everything, including what you would rather not.
Three arguments. That you are not as injured as you claim, that your account of the incident changed, and 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 counsel, bar further use, and require return or destruction at the end of the case. It is much easier to negotiate before production than afterward.
