Healy Scanlon Law

This is the next of a series of columns on how the law can impact your life. Each month we will focus on various aspects of the law relating to personal injuries, those that happen both on-the-job and otherwise, including mishaps which occur in driving vehicles, using products and receiving medical care. The column will also respond to legal questions relating to personal injury that are sent to us.

Healy Scanlon Law Firm is comprised of eight trial attorneys, two of whom are from Ireland. We are located downtown at 111 West Washington Street, Suite 1425, Chicago, Illinois 60602 (800-787-5431 or 312-324-0409). www.HealyLawFirm.com . The firm concentrates in the representation of injured victims of all types of accidents.

Readers are encouraged to call or write with questions concerning personal injury law.

Social Networking:
Many Unforeseen Impacts

In last month's column, we detailed a number of privacy concerns relating to social networking and the information we make available about ourselves on the Internet. This month, we turn to some of the impacts of social networking including its impact on litigation.

The Magnitude of the Issue

The speed at which social networking sites have grown has been monumental. It makes it difficult for everyone involved with social networking to keep pace with the myriad issues arising out of networking. While the networking has had significant effects on individual and business relationships, our focus here will be one its impact on civil litigation.

Social Networking and the Courts

Courts are just beginning to rule on networking issues, but a general trend is emerging. While there are still some jurisdictions that have not yet ruled on these issues, courts have generally found that social media users do not have an expectation of privacy. Therefore, in certain instances, information posted on social media sites may be required to be turned over to an opponent in litigation and used against you at trial or during pre-trial phases of a case.

Courts tend to reason that when a user communicates through Facebook, Myspace or Twitter, he or she understands and submits to the possibility that a third-party recipient (i.e. one or more website operators) will also be receiving the user's messages, and that recipient may further disclose them as the operator deems appropriate. Most, if not all, of the courts that have examined the issue, recognize that Facebook, Myspace and Twitter do not guarantee complete privacy. As detailed last month, Facebook's privacy policy explicitly informs users that information posted may become publicly available.

Some courts have attempted to limit access to some types of social media information and communications. There have been a number of rulings in personal injury cases. For example, a Michigan court recently held that a defendant in a personal injury case did not have a "generalized right to rummage at will" through information the plaintiff had attempted to limit from public view. That court required a threshold showing that the requested social media information be reasonably calculated to lead to the discovery of admissible evidence. That defendant was not allowed free access to plaintiff's account in the mere hope that there might be something of relevance.

Social Networking and Personal Injury Claims

In most personal injury cases , plaintiff's physical condition is critical to the outcome. In one case, the defendants requested all photographs a plaintiff had posted to any social media site since the date of the injury. The plaintiff objected. The court ruled that plaintiff was required to turn over all photographs taken after the date of the accident that depicted the plaintiff, regardless of who posted the photograph.

In a Pennsylvania case, the plaintiff claimed chronic physical and mental pain after a motorcycle accident. The defendant sought access to the plaintiff's Facebook account, which contained pictures of the plaintiff enjoying her life and status updates about going to the gym. The court required the plaintiff to provide the defendant with her Facebook login information. The defendant then had a 21-day window to inspect the plaintiff's Facebook profile, after which, the plaintiff was allowed to change her password.

A case from Virginia provides a lesson that both attorneys and clients must be careful as to what they do with social media accounts. During the discovery phase of the litigation, defendants sought photographs from the plaintiff's Facebook page, including one featuring the plaintiff holding a beer can and wearing a shirt with an unflattering slogan. After receiving requests from the defendants for access to the social media sites, plaintiff's attorney advised the plaintiff via e-mail that, "we do not want blow ups of other pics at trial so please, please clean up your Facebook and Myspace." Shortly thereafter, the plaintiff deleted the photographs and deactivated his social media accounts, with the help of his attorney. The court ruled that the plaintiff and his attorney had destroyed relevant evidence and ordered plaintiff and plaintiff's attorney to pay defense counsel very substantial amounts. In addition, the attorney's misconduct was referred to the Virginia State Bar for discipline, and allegations of plaintiff's perjury were referred to a local prosecutor.

In a different context, a Texas court, in terminating a defendant's parental rights, allowed the introduction of content from the defendant's Myspace page that stated he was single and did not want children.

Download your Information

In October 2010, Facebook launched its new Download Your Information (DYI) feature, claiming it was "an easy way to quickly download to your computer everything you've ever posted on Facebook and all your correspondences with friends: your messages, wall posts, photos, status updates and profile information." While the feature does not appear to recover deleted information, it does allow users access to all information that a user has ever posted, as long as that information was not specifically deleted. Many litigants attempt to use the DYI feature as a way to preserve the information on a user's account.

Social Networking and Jurors

In addition to clients and attorneys, the interaction between social media and jurors has found its way into litigation. In New Jersey, a juror was dismissed after attempting to Facebook "friend" a defendant. In another case, a manslaughter conviction was overturned after a juror conducted Internet research. In California, jurors are subject to civil penalties or even jail time for willfully disobeying jury instructions prohibiting them from engaging in electronic communications or conducting Internet research. In Michigan, a juror was removed from the jury, fined $250 and ordered to write an essay on the Sixth Amendment after posting a comment about the case on Facebook that she was "actually excited for jury duty tomorrow. It's gonna be fun to tell the defendant they're guilty..." Here in Illinois, jurors are instructed that they are not allowed to conduct Internet research or use social media sites to communicate regarding the trial.

As just a few examples show, the number of issues surrounding social media's impact on litigation is increasing on a daily basis. As courts struggle to keep up with this new, ever-changing landscape, diverse and conflicting decisions have emerged. The area will surely continue to grow and evolve in the coming years.

By: Martin Healy, Jr.

Patrick C. Anderson