On September 3, 2014, there was a panic among all Facebook users when Facebook went down. Not only did Facebook users suffer, but also Facebook advertisers. Hundreds of thousands of dollars were lost in advertising just for the brief time Facebook was down. The events of September 3, 2014 highlight just how much social media has affected society. Social media plays an active role in the majority of the population. Social media is also starting to branch over in the legal world, which is starting to affect lawsuits as well.
In the past couple of years, there have been more and more lawsuits filed that involve some form of social media. There are headlines that read: “17-year-old Sues His School After He Gets Suspended For Inappropriate Tweet,” “Bus Driver Sues Over Being Fired Because Of Facebook” or “Parents Sue After Their Daughter Was Forced To Disclose Her Facebook Password.” These are just some examples of the type of lawsuits brought because of the involvement and/or usage of some form of social media.
Social media is not only causing lawsuits to be filed but is also affecting the outcome of lawsuits. Prior to Facebook and Twitter, when an attorney engaged in discovery to prepare for a case, he/she would likely not even think about engaging in e-discovery. However, in 2014, almost all attorneys preparing for a case will engage in some form of e-discovery. Why? Because e-discovery now includes discoverable information found on social media forums.
What is “discoverable” depends on the case. Judges are not going to allow a fishing expedition and allow attorneys to search the history of all social media networks for every party.
For example, in Martin v. Allstate Fire & Casualty Ins. Co., Case ID 1104022438 (Phila. C.P. Dec. 13, 2011), the Plaintiff suffered injuries as a pedestrian when she was struck by a vehicle. At her deposition, the Plaintiff was asked whether she had a Facebook account and what the password was. The Defendant sought to compel the Plaintiff to turn over her Facebook password citing lack of privilege and the absence of any reasonable expectation of privacy. The Plaintiff opposed on the ground that the Defendant never asked how the Plaintiff used the site or whether she posted comments or photos about her injuries. Therefore, the Judge denied the request because the Defendant failed to make a threshold showing that the Plaintiff’s Facebook page contained relevant information.
However, if the information is pertinent to the case, the Judge will likely allow an attorney to view a party’s social media history.
For example, in McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285, No, 113-2010 CD (Jefferson C.P. Sept. 9, 2010), the Defendant collided with the Plaintiff during the final “cool down lap.” The Plaintiff sought damages for substantial injuries sustained as a result of the collision. Plaintiff claimed permanent impairment, loss and impairment of general health, strength and vitality and an ongoing inability to enjoy certain aspects of life. The Defendant’s attorney reviewed the public portions of the Plaintiff’s Facebook profile and found comments about a fishing trip the Plaintiff took and his attendance at another race in Florida. As a result, the Defendant’s attorney asked the Judge to compel the Plaintiff to turn over his username and password to gain access to Plaintiff’s private portions of his Facebook profile. Because the public profile indicated that Plaintiff’s private portions may contain relevant information to suggest the Plaintiff’s injuries were exaggerated, the Judge ordered the Plaintiff to produce his username and password to the Defendant’s attorney. Needless to say, social media turned this case upside down.
In some case, like McMillen, social media can be an attorney’s best friend. The Defendant’s attorney found damaging information on the Plaintiff’s Facebook page and used it to his/her client’s advantages. In other situations, Facebook can be the enemy. The attorney for the Plaintiff in McMillen had some damaging information exposed all because his/her client posted a comment on Facebook.
Therefore, the lesson learned is that Plaintiff attorneys should direct their clients not to post any information on social media forums that can be viewed by the public. Any statements or photos can become potentially damaging to the Plaintiff’s case. For Defense attorneys, social media can be the best arsenal for evidence. A simple photo of the Plaintiff could affect the entire outcome of the case making it that much easier for the Defendant to win.
Michael Kraemer is a partner with Kraemer, Manes & Associates, a law firm headquartered in Pittsburgh, serving all of Pennsylvania, with attorneys focusing on business law, employment law, litigation, personal injury, and civil issues. For more information please visit www.lawkm.com.