By William Bill Hurst
Among the latest litigation tactics in the U.S. are lawyers searching Facebook pages and other social media sites for photos, comments and other tidbits that might contradict what their opponents are claiming in Court. Increasingly Judges in civil cases are granting access to online social sites that may have once been considered private. In particular, defense lawyers in personal injury cases are finding social networks to be a rich source of potential evidence to contradict the plaintiff’s claims. These social medias have also been “gold – mines” for lawyers in divorce cases! The Divorce Attorneys Association has indicated that 81% of their members have used social networks in preparing evidence in their cases for dissolution. See Divorce Lawyer’s new friend list here found on NYtimes.com
The New York Bar Association announced that it is ethical to search these social networks to locate evidence. However, there is a caveat and that is that you cannot “friend” somebody, for example, on Facebook solely to gain access. Many Courts have ruled that materials that are password protected or reserved for selected friends are to be given a greater levity of protection. But more and more the State and Federal Courts have been ruling that defendants may be given access to private photos and comments that are relevant to the various claims being made by the opposing party and counsel. Read more here [www.nytimes.com/facebook/is/divorce/lawyeres/new/best/friend].
Postings on social networks are generally governed by the Federal Stored Communications Act (SCA) which regulates how private information can be disseminated in non-criminal matters. The law were has been interpreted to mean that sites don’t have to hand over users’ personal data in responses to civil subpoenas. www.Facebook.com/safety/groups/law/guidelines Defense lawyers though have devised a strategy to work around this roadblock in injury cases by asking Judges to order the plaintiffs to sign consent forms granting defendant s access to private material. The defendants then attach the consent forms when they subpoena the web sites. In these subpoenas the plaintiffs are essentially authorizing the “sites” to hand over printings of the private portions of the pages to defendants.
A personal injury case in Erie, PA shows how online comments which were thought to be private can work their way into a lawsuit. In 2007 a race driver named Bill McMillan sued the owners of a local racetrack claiming he was seriously injured as the result of an accident on the track. The lawyer for the speedway checked out McMillan on Facebook and found comments and photos suggesting that after the accident McMillan went on a fishing trip to Florida and attended the Daytona 500. So counsel then filed a motion to compel McMillan to turn over his Facebook and MySpace user names and passwords so they could “dig deeper”. Recently, the Jefferson County Court granted the motion noting that Facebook and MySpace are specifically designed for sharing personal information. The Judge wrote “It would be unrealistic to presume such disclosures would be considered confidential”. This clearly is the national trend.
In Indiana plaintiff’s counsel in accident cases take the position that the only thing relevant or likely to lead to discoverable evidence is that which relates to the client’s medical condition or limitations. Thus plaintiffs’ attorneys are asking for protective orders in an attempt to have the Court appoint a Master at defense’s expense to review and give the defendant only the specific relevant information. This is done in response to the defense’s interrogatories asking for passwords to Facebook and other social media accounts and requests to produce all entries made in the Facebook page from the date of the injury to the present. The success of this tactic, however, is in question and varies from court to court. Across the country and in Indiana, Bar Associations are taking up this issue and looking at the ethics involved trying to make a determination as to the discoverability of social media information. There is an EEOC case in the Federal Court in Indianapolis, Indiana that addresses this very issue. EEOC v Simply Storage Management, LLC, 270 FRD 430 (S. Dist. Ind. 2010). The judge in this case ordering production of the media based its decision on the pretense there is no expectation of privacy on anything that is posted on Facebook and other social media sites by the litigants.
So what are litigants to do, to protect themselves? Should you remove comments? It is therefore discoverable and reasonably calculated to lead to the discovery of admissible evidence. There are cases sanctioning plaintiffs’ counsel for instructing an injured party clients to remove pictures from Facebook pages to hide potential evidence in the case. In addition if a client takes down their Facebook page Facebook keeps a copy of it indefinitely; so the general rule seems to be if you put it on the internet, you have no expectation of privacy, and therefore it’s likely going to be discoverable even if you try to hide it.
At our law firm, we always tell clients that putting information on Facebook, MySpace, and other social networking sites can have consequences for their accident case. This is true even if the client’s case is not in litigation as often insurance adjustors and other claims representatives will investigate these social media accounts looking for information which may be non- lawyer claims investigators; generally not as restrained by ethical considerations as counsel may be. One may assume that in this current day and age insurance companies will start monitoring and copying social networking accounts immediately after an accident occurs.
If you have an accident pay attention to your entries on your social networking websites and seek counsel immediately. You may talk to our experienced personal injury lawyers for a free consultation at 1-800-636-0808 or contact us through our website. we only charge a fee if you win your case.