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Posted in Videos on December 21, 2016   |  by Gary Burger

Are Defendants Entitled to Facebook, Psychiatric, and Cellphone Records?

So, I was asked to do a continuing legal education lecture at a CLE – lawyers call it a CLE – the other day, and one of the mock things we had to do is to see if the defendant would be entitled to get documents from my clients, my pretended clients, in this class. And, the documents they wanted to get were Facebook posts of my client, my client’s psychiatric records, and the private Facebook posts and cellphone records, and I was looking at the paper that I presented.

So, in every case, all defendants want to go get Facebook posts relating to the client’s physical or mental condition and their activities and any statements relating to the incident at issue. So, of course, they’ll be entitled to, and there are Facebook laws, and then there’s this new statute in Illinois, and there’s also a difference in whether or not you mark your Facebook posts as private or if they are public in nature. So, if they’re private, they’re less likely to be produced, but if someone injured in a car accident case is posting on Facebook page that it was really their fault in the accident and they’re not really hurt, that ought to go to the defendant because that’s not fair to say otherwise and then have a Facebook post saying something different.

The second thing about psychiatric records. So, what the law says is that general run-of- the-mill emotional distress damages do not warrant the production of psychiatric records, but if you’re trying to claim depression, PTSD, some type of effect on anxiety and those types of non-run-of-the- mill types of sequelae or results from a personal injury, then usually your psychiatric records will get produced. So, you want to think about that when going to a therapist or psychiatrist or psychologist, and what I tell folks is, “When you go into those meetings, talk about the incident that occurred. Talk about the medical negligence or the slip-and- fall or the traumatic truck crash. Don’t talk about your parents, and don’t talk about the other issues. Focus on the issues for which you are there. That is why you’re needing therapy. That is the acute nature of that.” Now again, mental health practitioners like to get in a lot of different areas, but try to focus on the incident that you’re there for.

And lastly, cellphone records. A lot of times your cellphone records are going to get produced. They just are. If you’re in an auto accident, you should be able to show your cellphone and say you weren’t texting and driving, and you want to do that, so that’s going to happen. And then if you have other complex litigation where communications with an employment discrimination case or other types of cases where you have a long-term relationship with folks. A workers compensation case, we have a case right now where the text messages from the boss to my client are proving that my client was injured on the job when the employer faults his claim in there or not, so we’re using those to our advantage. I want to get the text messages and the phone records from the defendant who rear-ended my client and was looking at their phone while they did. Concomitantly, we want to be able to give it the same way, so make sure those records favorably help you in terms of liability in the case.

So, if you have any questions about what you’re going to need to produce in terms of psychiatric, Facebook or cellphone records, give me a call, Gary Burger, (314) 542- 2222. Visit at Thanks.