Susan A. Faunce, trial lawyer and partner at Berman & Simmons

Protecting Clients in the Era of Social Media

Lawyers who represent injured people must be aware of the increasing use of social networking sites and how a client’s postings may impact their personal injury case. Clients may be subject to exhaustive discovery requests about their personal activities and, often, information from these sites is highly unlikely to be helpful to a case. This article will address a variety of steps that can and should be taken to avoid the damage that they may do. 

What Are Social Networking Sites?
Social networking sites are interactive websites where clients can post information including photos, videos, comments, and links to websites. They include Facebook, MySpace, LinkedIn, Twitter, and YouTube, and new sites are constantly being developed. Facebook is reportedly the most popular social networking website. It claims to have more than 800 million users. 

Generally, these sites connect users based on common interests. Users create a list of “friends” with whom they can share information. They may also join community pages and groups involving people they do not know. The anonymity of the computer can cause people to forget that their postings may not remain private. Party photographs, references to drinking and other adventures, and crude comments may seem harmless at the moment that they are posted, but may look very different in the context of a personal injury case. More mundane postings may prove to be inconsistent with claims of disability and other damages. 

Does the Constitutional Right to Privacy Protect Against Disclosure?
Social networking sites provide privacy options which allow a user to control the extent to which they share information. Privacy settings can range from permitting every member of the site to view information to sharing only with friends or with an individual. According to Facebook, the average user has 130 friends. In cases where a person permits sharing of information to only friends, the majority of courts have rejected Fourth Amendment right to privacy arguments to prevent disclosure of postings and have held that there is no reasonable expectation of privacy when a person chooses to disclose personal information even if it is limited to friends. As the Supreme Court of New York stated, “[I]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.” Romano v. Steelcase, Inc., 907 N.Y.S. 2d 650, 657 (N.Y. Sup. Ct. 2010). 

When Do We Have a Duty to Produce?
Generally, courts have required disclosure of information from social networking sites when there is a factual basis for arguing the relevancy of the evidence to the case. In Romano v. Steelcase, Inc., the plaintiff in a personal injury claim alleged that she sustained permanent injuries which confined her to her home and bed. Id. at 650. Public portions of her Facebook page revealed photos of her smiling outside of her home. The defense sought access to plaintiff’s Facebook and MySpace accounts. The Supreme Court of New York found that there was a reasonable likelihood that plaintiff’s private portions of her Facebook and MySpace pages contained material that was relevant to the action. 

In Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa.Com.Pl.), plaintiff injured his leg in a forklift accident and claimed he had permanent scarring of his leg and no longer exposed his leg due to the embarrassment of the scar. The defendant accessed public portions of the plaintiff’s Facebook pages showing otherwise, and the defense requested information from the non-public pages. The Pennsylvania Court of Common Pleas rejected plaintiff’s assertion of privacy and held the information to be discoverable. However, the Court emphasized that discovery requests must be based on a threshold showing that the publically accessible pages contain information that would suggest relevant postings are likely to be found on the non-public portions. See also EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010); Ledbetter v. Wal-Mart, 2009 WL 10067018 (D. Colo.); Bass v. Miss Porter’s School, 2009 WL 3724968 (D.Conn.). 

In contrast, courts will not grant discovery of social networking sites when there is no particularized showing of relevancy. In McCann v. Harleysville Insurance Co. of NY, 910 N.Y.S.2d 614 (N.Y. Sup. Ct. 2010), the defense requested a general authorization to access plaintiff’s Facebook account claiming that the request was relevant to whether plaintiff sustained a serious injury. The Appellate Division of the New York Supreme Court upheld the lower court’s denial of the request, stating that, “[D]efendant essentially sought permission to conduct a ‘fishing expedition’ into plaintiff’s Facebook account based on the mere hope of finding relevant evidence.” Id. at 615. 

How Do We Protect Our Clients?
The case law is clear that clients will have to produce information from social networking sites in response to tailored requests for discovery once the defendant can make a minimal showing of relevance. Producing information from these sites can require an immense amount of time and resources. These practice tips can help protect personal injury clients:

•           Talk to clients to find out if they are members of any social networking sites. Some clients may not even realize that portions of their sites are public.

•           Explain the consequences of their sites during litigation.

•           Advise clients to refrain from posting information related to their case.

•           Ask clients to abstain from using social media until the case has ended.

•           Do not advise clients to shut down their pages during litigation as this could be spoliation of evidence.

•           Stay current with the case law. It constantly morphs as social media evolves.

•           Challenge any broad discovery requests. 

Conclusion
The advent of social media will continue to change how people communicate. Amid the changes ushered in by new technologies, one thing is certain: lawyers must understand the legal and practical implications of social media and take steps to minimize the problems it can create.

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Berman & Simmons is the leading personal injury and medical malpractice law firm in Maine. For more than 100 years, our trial attorneys have represented those who have been injured or harmed by the actions of others. These personal injury cases range from car and truck accidents to the most complex litigation involving defective products and malpractice by healthcare providers. We are known as the firm that will stand up and fight for injured Mainers in disputes against big corporations and powerful interests.