What Facebook and Twitter know can hurt your injury claim

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If you’re wondering whether what you post online can affect your injury claim, read this article from the American Association for Justice. It’s reprinted here with permission from the association.

Is your client an online social butterfly?

By Karen Barth Menzies and Wesley K. Polischuk

Defense lawyers view online social networks like Facebook and Twitter as breeding grounds for damaging discoverable information. What you don’t know about how courts are shaping discovery of ‘wall’ postings, instant messages, and ‘tweets’ could be your client’s downfall.

Nearly everyone knows by now about these online social networking (OSN) sites. Each day, more and more people—including many of your clients, no doubt—are using these virtual confession booths to share information about all aspects of their lives. This presents a problem for litigators like you as you try to manage the universe of discoverable information in your clients’ cases.

In June 1995, about 15 percent of Americans used the Internet. By April 2009, that number had skyrocketed to almost 80 percent. 1 Most adult Internet users go online almost every day. 2

The share of adult Internet users who have a profile on an OSN site has more than quadrupled in the past four years, and older people are signing on in increasing numbers.

A 2009 finding that 75 percent of people age 18 to 24 have an OSN profile was not surprising, but that study also revealed that about a third of adults age 35 to 44 are active on OSNs, 19 percent of people age 45 to 54 have profiles, and 10 percent of people between the ages of 55 to 64 do too. 3
These numbers translate to a concerning conclusion—the idea that OSN users are all 20-somethings is wrong. Your 25-year-old client with the car accident case probably has a Facebook account, but your 64-year-old client with the pharmacy negligence case might be twittering away in her free time too.

These numbers also mean that a great deal of potentially discoverable personal information about your clients is moving at high speed throughout the far reaches of cyberspace. The scary part is, this information can be uncovered with just the click of a button, without interrogatories or motions to compel.

OSN users can interact and share information in many ways: through chat, messaging, e-mail, video, file-sharing, blogging, discussion groups, and more. 4

Facebook, which became host to a staggering 500 million active users last July, allows people to create a profile that contains information such as their birthday, hometown, relationship status, sexual orientation, e-mail address, current city, education and work, activities, interests, and favorite Web sites. 5

Once users have created a profile, they can “friend” other users, post messages on their own profile “wall,” post messages on other users’ walls, and post pictures.

New developments in the law concerning the discoverability of OSN information have forced plaintiff lawyers to approach the issue with caution. 6 You must keep up to date on these topics to limit what defense counsel can learn about your clients and key witnesses. 7

Public v. private

Most OSN sites allow users to determine who can view their information and what information can be viewed. For example, Facebook users can manage the level of privacy on their profiles by either letting anyone view the information or limiting access to specific people, like “friends” or “friends of friends.” 8

MySpace and Twitter warn in their user agreements that they may have to share user information to comply with the law, while Facebook states that it may share information should it be asked to do so pursuant to a subpoena.

Earlier this year, Facebook came under fire for changes in its privacy policy and the use of users’ personal data on third-party Web sites. The issue landed Facebook in hot water in Washington; in April, four Democratic senators called on the company to reconsider the latest changes in the settings and asked the Federal Trade Commission (FTC) to streamline guidelines regarding privacy on all social networks. 9

Soon after, 15 online privacy groups filed a joint FTC complaint claiming Facebook had engaged in “unfair and deceptive trade practices.” 10

Much of the criticism targeted a change in the way Facebook allows other Web sites to obtain information about its members. 11 Members’ personal information—such as where they work, what music they like, and where they went to school—were made available, without notice, to companies that have a special relationship with Facebook. 12

Facebook responded to this criticism by changing its permission settings so that companies are only able to access the public parts of profiles by default. If a company wants to access private information, it must obtain permission from the OSN user. 13

Even when OSN sites don’t change their privacy policies, users can unwittingly reveal virtual bankers’ boxes of information about themselves through their online activity. Courts have begun looking at the discoverability of this information.

Although OSNs do not guarantee complete privacy regardless of the privacy settings, the act of making a profile “private” should suggest that a user does not intend to give up his or her right to privacy by posting information online.

Yet several decisions suggest that particularized relevance will outweigh privacy interests when it comes to OSN profile content.
One example is Ledbetter v. Walmart Stores, Inc. In that case, several electricians sued Walmart for work-related injuries. 14 One of the electricians’ spouses brought a claim for loss of consortium.

Walmart sent subpoenas to Facebook, MySpace, and Meetup.com for information about the plaintiffs. The court denied the plaintiffs’ motion for a protective order based on physician-patient and spousal privileges, finding that the plaintiffs had waived the privileges by filing the lawsuit. The court found that the information sought was relevant and reasonably calculated to lead to the discovery of admissible evidence.

Similarly, in the consolidated cases of Beye v. Horizon 15 and Foley v. Horizon, 16 which involved an insurer refusing to pay health benefits for the plaintiffs’ children’s eating disorders, the court ordered the plaintiffs to turn over the children’s messages on OSN sites concerning their disorders.

In justifying discovery of this information, the defendants successfully argued that the children’s OSN messages would show that their eating disorders were due to emotional causes and were therefore not the insurer’s responsibility, since New Jersey law required coverage only for biological mental illness. 17

Courts’ willingness to allow defendants access to plaintiffs’ OSN information is further reflected in Bass ex rel. Bass v. Miss Porter’s School. In that case, the defendants sought documents that were “related to [the plaintiff’s] alleged teasing and taunting through ‘text messages’ and ‘on Facebook.'” 18

After performing an in camera review of the Facebook documents, the court stated that the plaintiff’s Facebook usage depicted a snapshot of the user’s relationships and state of mind at the time of the content’s posting.

Therefore, relevance of the content of the plaintiff’s Facebook usage as to both liability and damages in this case is more in the eye of the beholder than subject to strict legal demarcations, and production should not be limited to plaintiff’s own determination of what may be “reasonably calculated to lead to the discovery of admissible evidence.” 19

In T.V. v. Union Township Board of Education, a student was sexually assaulted by another student and filed suit, claiming emotional distress damages. The school board sought access to the assault victim’s OSN profile to determine whether it confirmed or contradicted the emotional distress claim. 20

The court held that the student’s privacy prevailed because the school board failed to make a particularized showing that the information sought was relevant, although the court left open the possibility of disclosure of the information if ongoing discovery provided an appropriate basis.

Courts also may view the act of posting information online as an acknowledgment that the information is not private. One example of this is Moreno v. Hanford Sentinel, Inc. 21

In that case, the court addressed whether an individual could sue for invasion of privacy and intentional infliction of emotional distress when a newspaper published negative comments that she made on her MySpace page about her hometown. She alleged that the newspaper’s actions resulted in threats of physical violence toward her family that ultimately forced her father out of business.

The court of appeal affirmed the trial court’s dismissal of the invasion of privacy claim. In doing so, the court stated, “The facts contained in the article were not private. Rather, once posted on MySpace.com, this article was available to anyone with Internet access.” 22

The court added, “[T]he fact that [the plaintiff] expected a limited audience does not change the above analysis. By posting the article on MySpace.com, [the plaintiff] opened the article to the public at large. Her potential audience was vast.” 23

Although Moreno did not concern the discoverability of OSN profile information, it supports the view that the act of posting information on an OSN that can be seen by others, even if the information is restricted, undercuts the expectation of privacy. Such reasoning is consistent with Facebook’s privacy policy, which makes it clear that even if a user posts information on a private profile, that will not preclude a user’s “friend” from reposting the information elsewhere in cyberspace or prevent the information from showing up on another user’s OSN profile. 24 If a user has minimal privacy protection or none, a court may be more inclined to grant a motion to compel the production of OSN profile data.

New direction?

A recent federal district court case in California is worth noting. Judge Margaret Morrow of the U.S. District Court for the Central District of California applied the Stored Communications Act (SCA) in Crispin v. Christian Audigier, Inc., to find that private Facebook and MySpace communications couldn’t be subpoenaed for use in civil lawsuits. 25

The defendants had served subpoenas duces tecum on several third-party businesses, including Facebook and MySpace, and the plaintiff moved to quash them, citing the SCA. 26

The court found that because OSNs qualify as electronic communication services (ECS) and remote computing services (RCS) under the SCA, they are barred from divulging private communications, like electronic messages, to certain parties.

Acknowledging that the act was passed in 1986, before the advent of the Web, Morrow nevertheless determined that an OSN could be characterized as an ECS because it provides users “the ability to send or receive wire or electronic communications” and as an RCS because it offers message storage services.

With respect to private messages, Morrow determined that “those forms of communications media are inherently private such that stored messages are not readily accessible to the general public.” 27

With respect to wall postings and comments, the court stated that the discoverability of the information depends on the privacy settings of the OSN user and the extent of access allowed to the postings and comments. Interestingly, the court noted that the number of users who can view the stored message has no legal significance.

Although the decision is not binding on other courts, it is an important ruling regarding the discoverability of electronic communications, and it provides a conduit between the outdated SCA and today’s ever-changing technology.
Given the Crispin decision, plaintiffs may have a better chance warding off the volley of discovery requests for OSN information from defendants. But given the evolving technology landscape, it is still necessary to have an informed client when it comes to OSN use.

To protect your clients, tell them about the pitfalls of OSNs as soon as you accept representation. They must understand that social networking sites have the potential to do great harm to a case. Explain to them that although the courts are not entirely clear on the issue of discovery of OSN information, it is likely that the defendants will try to review every page of a plaintiff’s social networking site.

Online social networking is a fast-paced, ever-changing environment, and courts are struggling to keep pace. You must too. By staying aware of current trends and legal developments, you can minimize the disclosure of information that could cause harm to your clients and their cases.

Karen Barth Menzies is a partner in the law firm of Robinson, Calcagnie & Robinson in Newport Beach, California. She can be reached at kbmenzies@rcrlaw.net. Wesley K. Polischuk is an associate in the firm and can be reached at wpolischuk@rcrlaw.net.

Reprinted with permission of TRIAL (October 2010)

Copyright American Association for Justice, formerly Association of Trial Lawyers of America (ATLA®)

Notes

1. Pew Internet & Am. Life Project, Trend Data—Internet Adoption, https://www.pewinternet.org/Static-Pages/Trend-Data-(Adults)/Internet-Adoption.aspx.

2. Pew Internet & Am. Life Project, Trend Data—Online Activities, Daily, https://www.pewinternet.org/Static-Pages/Trend-Data-(Adults)/Online-Activities-Daily.aspx.

3. Amanda Lenhart, Pew Internet & Am. Life Project, Adults and Social Network Websites (Jan. 14, 2009),

4. Wikipedia, Social Network Service, https://en.wikipedia.org/wiki/Social_network_service.

5. Julianne Pepitone, Facebook Hits 500 Million Users, CNNMoney.com (July 21, 2010), www.money.cnn.com/2010/07/21/technology/facebook_500_million/index.htm.

6. See Karen Barth Menzies, Perils and Possibilities of Online Social Networks, Trial 58 (July 2008)

7. Not only can an OSN profile reveal information about a client; it also can reveal potentially harmful information about you. Judge Susan Criss, a Facebooking member of the bench from Galveston, Texas, has used Facebook to monitor some of the attorneys appearing before her. She even caught a lawyer lying about why she needed a continuance—the lawyer stated that she needed additional time to mourn the death of her father, but her status updates on Facebook told a different story. Molly McDonough, Facebooking Judge Catches Lawyer in Lie, Sees Ethical Breaches, ABA J. (July 31, 2009),

8. Facebook Privacy Policy (last revised Apr. 22, 2010), www.facebook.com/policy.php.

9. Eric Kuhn, Senators Urge Facebook to Change Privacy Settings (Apr. 27, 2010), www.cnn.com/2010/POLITICS/04/27/senators.facebook/index.html.

10. Daniel Lyons, The High Price of Facebook, You Pay For It with Your Privacy, Newsweek (May 15, 2010), www.newsweek.com/2010/05/15/the-high-price-of-facebook.html.

11. John D. Sutter, Facebook Launches New Security Feature (May 25, 2010), www.cnn.com/2010/TECH/05/14/facebook.security.privacy/index.html.

12. Lyons, supra n. 10.

13. Geoffrey A. Fowler, Facebook Changes App Permissions, But Critics Say It’s Not Enough, Wall St. J. Digits Blog (June 30, 2010), https://blogs.wsj.com/digits/2010/06/30/facebook-changes-
app-permissions-but-critics-say-its-not-enough
.

14. 2009 WL 1067018 (D. Colo. Apr. 21, 2009).

15. No. 06-Civ.-5337 (D.N.J. filed Nov. 8, 2006).

16. No. 06-Civ.-6219 (D.N.J. filed Dec. 26, 2006).

17. Mary Pat Gallagher, MySpace, Facebook Pages Called Key to Dispute over Insurance Coverage for Eating Disorders, Law.com (Feb. 1, 2008), www.law.com/jsp/law/LawArticleFriendly.jsp?id=900005559933.

18. 2009 WL 3724968 at *1 (D. Conn. Oct. 27, 2009).

19. Id.

20. No. UNN-L-4479-04 (N.J. Super. filed Dec. 22, 2004).

21. 91 Cal. Rptr. 3d 858 (Cal. App. 2009).

22. Id. at 861.

23. Id. at 863.

24. Facebook Privacy Policy, supra n. 8.

25. No. 2:09-cv-09509 (C.D. Cal. filed Dec. 29, 2009).

26. Or. Granting Pl.’s Mot. Rev. of Mag. J.’s Dec. Re: Pl.’s Mot. to Quash Subp., 2010 WL 2293238 (May 26, 2010).

27. Id. at 16.