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“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

Social Media: New Tool for Litigation Defense Attorneys

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Social Media: New Tool for Litigation Defense Attorneys
 

For decades, private investigators have been the time-honored method for gathering evidence to verify or refute the claimed severity of a plaintiff’s injuries. Conducting an investigation took time and added another expense to the cost of litigation services. Today, social media platforms allow defense attorneys to gather information about the personal life of a plaintiff at little or no cost and without leaving the office.

A wealth of information available on social media platforms

Google, Tumblr, Instagram, YouTube, Facebook and LinkedIn are only a few of the social media platforms on which plaintiffs and their friends post photographs, videos and written messages that can be freely accessed by anyone with access to the internet. The information that is available to defense attorneys can be used in personal injury cases and commercial litigation as evidence to prove or disprove key facts and allegations. What better way to challenge a plaintiff’s claims of suffering a serious injury than with a series of photos showing the supposedly-injured party skiing with friends a short time after the accident.

Ethical considerations when accessing private posts

A Google search using a plaintiff’s name will typically reveal the individual’s Facebook page, a LinkedIn account and their personal website. Public information posted on these websites can be accessed as a routine component of the litigation services provided to clients by defense attorneys, but care must be taken when attempting to access private information that is not accessible to everyone.

Attorneys must abide by ethical standards when attempting to gain access to posts and activities that the owner of the page has labelled as “private.” State ethical guidelines may place restrictions on an attorney’s ability to access private information. For example, the Illinois Rules of Professional Conduct prohibit attorneys from accessing social networking sites using false pretenses, such as “friending” the unsuspecting individual or having someone do so on the attorney’s behalf.

Conflicting interpretations: Know the rules before you search

The rules applicable to accessing social media may, in some instances, be quite different from one jurisdiction to another. For instance, lawyers in Philadelphia attempting to access the Facebook page of a witness might be committing an ethical violation by using a third party to “friend” the person, but defense attorneys in New York City can “friend” a person as long as the lawyer uses his or her real name and profile.

The variation in what attorneys are permitted to do comes from different ethical opinions of bar associations. The best practice for defense attorneys is to check with their local bar association for clarification of what is allowed.

Putting evidence from social media to good use

Defense attorneys who might not be convinced of the benefits of evidence gleaned from social media might wish to consider my personal experience with using it as a part of my firm’s litigation services. A plaintiff in one case sued for personal injuries she claimed to have suffered in a motor vehicle accident with my client. The plaintiff’s public profile on Facebook contained statements she posted in which she denied suffering any injuries other than damage to her vehicle. She even mentioned her claim against my client and how she filed it to get money. Another plaintiff claiming severe physical injuries suffered in an accident with a client had a difficult time explaining the post-accident hiking excursions and vacations she went on and posted about on her Facebook page.

Using discovery demands to obtain information

Obtaining a plaintiff’s Facebook history can usually be accomplished during the discovery phase of a case with a request for production without having to resort to a subpoena. Judges have been inclined to honor the request when I have litigated the issue of a plaintiff’s objection to providing the information.

Social media: It’s a two-way street

Defense attorneys must caution their clients that a plaintiff’s attorney also has access to social media evidence. Defendants should be careful about what they post to social media to avoid having turn up in a courtroom as evidence being used against them at a trial.

Please contact Alex Sweis at McKenna Storer about this topic and any other Defense Litigation Services matters.

Categories General Litigation



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