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In a Bike Crash? Understand the impact Facebook may have on your case before you decide to post

Facebook: Friend or Foe in Personal Injury Litigation?

As published in the New York Law Journal

Written by Frank J. Lombardo, Esq.

New York Law Journal

10-03-2012

For the last several years, creative and technologically savvy defense counsel across the country have accessed Facebook and other social media sites in order to obtain the ever elusive "smoking gun" in a personal injury action. Whether a plaintiff in "constant pain" posts a photograph running in a marathon, or a "clinically depressed" claimant posts video links to her recent wedding celebration, defendants are using plaintiffs' public and voluntary posts to shine a light on the inconsistencies between plaintiff's public profile and plaintiff's alleged injuries and limitations. Consequently, courts have been called on to recognize the relevancy of social media in the modern personal injury action. In a country in which 66 percent of online adults are connected to one or more social media platform,1 the court has finally accepted that social media records are subject to the same liberal rules of discovery as other forms of evidence.

Facebook and Beyond

The power and influence of Facebook and other social media outlets is undeniable. In fact, as of March 2012, Facebook has a staggering 901 million monthly active users and 526 million daily users. Recent studies have shown that on average, 398 million of those users were active on Facebook on at least six out of seven days.2 There have been more than 125 billion friend connections and more than 42 million pages with 10 or more "likes."3 Additionally, more than 300 million photos are uploaded to Facebook per day, and on average, during the first quarter of 2012, 3.2 billion "likes and comments" were generated by Facebook users daily.4

Facebook does not stand alone and there are several other competitive social media websites. As of February 2012, Twitter had 500 million registered users, and 200 million active users. Thirty six percent of these users "tweet" at least once per day. Additionally, MySpace has more than 25 million registered users5 and as of February 2012, LinkedIn had 35 million users.6

Clearly, social media is not likely to disappear any time soon. These staggering statistics demonstrate its permanence and relevancy in today's society. It is therefore not surprising that defendants in the litigation field are starting to take advantage of its widespread use and popularity.

New York Weighs In

As more and more defense attorneys throughout the country are using social media websites to their advantage, the discoverability of social media in personal injury litigation is becoming a hotly debated issue. Leading the national trend, New York courts have uniformly concluded that social media is discoverable in both criminal and civil matters.

New York law is clear: "plaintiffs, who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action."7 Furthermore, for personal injury litigation, "discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff's injury."8 The courts have extended this liberal discovery rule to social media.

In Romano v. Steelcase , the plaintiff claimed to have sustained permanent injuries, and as a result, could no longer participate in certain activities. However, the defendant contended that plaintiff's MySpace and Facebook pages revealed that plaintiff led an active life, and had recently traveled to Florida and Pennsylvania. Consequently, defendant's discovery demand requested "authorizations to obtain full access to and copies of plaintiff's current and historical records/information on her Facebook and MySpace accounts."9

The New York State Supreme Court, Suffolk County, found the information sought to be both "material and necessary to the defense of this action and/or could lead to admissible evidence." Furthermore, the court explained, "in light of the fact that the public portions of plaintiff's social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant."10

The Appellate Division, First Department, recently cited to Romano in a decision on the discoverability of social media records. In Patterson v. Turner Construction , the defendant brought a motion to compel authorizations for all of plaintiff's records of "online social networking services" that were compiled after the incident. The court not only recognized that "at least some of the discovery sought 'will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims,'" but it also remanded the case "for a more specific identification of plaintiff's Facebook information that is relevant in that it contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses on other claims."11

Similarly, the Supreme Court, Richmond County, in Loporcaro v. City of New York and Perfetto Contracting, granted defendants' motion to compel production of the plaintiff's full Facebook account, where the plaintiff's public profile, depicting plaintiff living an "active lifestyle," contradicted his alleged knee injuries.12 The court reasoned, "…clearly, our present discovery statutes do not allow that the contents of such accounts should be treated differently from the rules applied to any other discovery material…" The court added, "since it appears that plaintiff has voluntarily posted at least some information about himself on Facebook which may contradict the claims made by him in the present action, he cannot claim that these postings are now somehow privileged or immune from discovery."13

More recently, in Johnson v. Ingalls ,14 the Appellate Division, Third Department, affirmed the Supreme Court's finding, admitting into evidence photographs obtained from the plaintiff's Facebook page. The plaintiff in Johnson alleged she sustained "severe anxiety, vertigo, constant migraines and pain for a period of about two years," so much that her "anxiety prevented her from going out or socializing with friends, and that she required antidepressant medication."15 However, photographs posted on plaintiff's account, depicted her "attending parties, socializing and vacationing with friends…and otherwise appearing to be active, socially engaged and happy." The court held that the photographs had probative value with regard to plaintiff's claimed injuries.16

In Carr v. Bovis,17 plaintiff's counsel brought a motion for a protective order, after the defendants served a demand for social media authorizations after discovering numerous photographs on the plaintiff's public Facebook page. The photographs depict the plaintiff on vacation and shooting heavy artillery during a time period in which the plaintiff claimed to have been incapacitated. The Supreme Court, New York County, denied plaintiff's motion for a protective order, and granted defendants' cross motion compelling the plaintiff to provide a supplemental response to defendants' demand for authorizations for access to all social media websites. Additionally, the court granted defendants' motion to compel plaintiff to preserve electronically stored information, specifically, any and all memory cards used in connection with uploading information onto Facebook or any other social media page.

More recently, in Abizeid v. Turner Construction,18 the defendants served plaintiff's counsel with a demand for Facebook authorizations after discovering photographs on the plaintiff's public Facebook page, depicting the plaintiff on vacation, engaged in strenuous activities such as off-roading in an ATV, at a time when she claimed she was depressed and in constant pain. Of significance, after service of the discovery demands, plaintiff subsequently deleted and or restricted her privacy settings on her page. The Supreme Court, Nassau County, granted defendants' motion compelling disclosure and ordered plaintiff to provide defendants with an authorization for the contents of her Facebook account as it existed at the time of the demand for authorizations. Notably, the court ordered that failure to comply with these directives may result in sanctions pursuant to CPLR 3126.

New York courts have also extended the liberal rules of "e-discovery" to criminal matters. In People v. Harris , the Criminal Court of the City of New York found that the defendant had no proprietary interest or standing to move to quash the New York County District Attorney's Office subpoena of defendants' Twitter account. The court reasoned, "the defendant had knowledge that Twitter instantly distributed his Tweets to Twitter users and non-Twitter users, essentially anyone with Internet access. Indeed, that is the very nature and purpose of Twitter."19

A National Trend

Although courts differ in their reasoning and application of state law, a distinct trend is emerging in which state and federal courts nationwide are finding that social media records are discoverable, in both civil and criminal cases.

In 2009, the Connecticut District Court granted the defendants' discovery request for records "related to [plaintiff's] alleged teasing and taunting through 'text messages' and 'on Facebook.'"20 After conducting an in camera review of the plaintiff's Facebook records, the court found for the defendant, and reasoned that "Facebook usage depicts a snapshot of the user's relationships and state of mind at the time of the content's posting," and therefore "[the] relevance of the content of plaintiff's Facebook usage as to both liability and damages in this case is more in the eye of the beholder…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.'"21

Similarly, a federal District Court in Michigan ruled that social media is discoverable, as long as there is a showing of relevance, and "[a] threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence."22 Although the court found that in this specific instance, the photographs defendants provided were not inconsistent with plaintiff's injuries and therefore not sufficient to meet the requisite "threshold," the court noted that "if the plaintiff's public Facebook page contained pictures of her playing golf or riding horseback, the defendant might have a stronger argument for delving into the non-public section of her account."23

The Pennsylvania Court of Common Pleas issued an order, directing the plaintiff to provide his Facebook and MySpace user names and passwords to defendants' counsel so that they could investigate whether the plaintiff had made comments contradicting his disability and damage claims.24 The court reasoned that because the plaintiff alleged "substantial injuries, including possible permanent impairment…and inability to enjoy certain pleasures of life," but his public portion contained "comments about his fishing trip and his attendance at the Daytona 500 race in Florida," the court held that "access to those sites should be freely granted."25

Indiana also weighed in on this debate in the highly publicized case of EEOC v. Simply Storage Mgmt., involving workplace sexual harassment. The District Court granted defendants' motion to compel discovery and gain access to plaintiff's Facebook and MySpace photographs, videos, profiles, and postings. The court noted that discovery relating to social media "requires the application of basic discovery principles in a novel context."26

Not only is "e-discovery" relevant and discoverable in personal injury actions, but the courts are now beginning to rule on the admissibility of social media in criminal matters as well. In Bradley v. State of Texas, the Texas Court of Appeals explored the role of the admissibility of social media in criminal prosecutions.27 Following an armed robbery, the complainant discovered the defendant's brother's Facebook page, depicting the defendant, posing with two guns, including one that resembled the gun stolen from the victim during the robbery. In denying the defendant's appeal, the court found that "[the] vast online photo databases—like Facebook—and relatively easy access to them will undoubtedly play an ever-increasing role in identifying and prosecuting suspects."28

Spoliation

Courts are not only finding social media to be discoverable but they are also going as far as imposing sanctions on plaintiffs and their counsel for engaging in spoliation of such evidence.

For example, the Virginia Circuit Court ordered plaintiff's counsel to pay $522,000 for instructing his client to remove photographs from his Facebook profile, and ordered the client to pay an additional $180,000 for obeying the instructions.29

Likewise, in Pennsylvania, the District Court found that spoliation of evidence had occurred and ordered an adverse inference instruction to the jury. In Patel v. Havana Bar, Restaurant & Catering, the sister-in-law of the plaintiff sent a message over Facebook asking attendees of a party to write statements in support of the plaintiff's case that he was not intoxicated. Two years later, the sister-in-law sent another message again asking attendees for statements that the bar recklessly served the plaintiff alcohol. She did not share any of the statements with the defendant until defense counsel discovered their existence during a deposition. The plaintiff's sister-in-law failed to produce the 2008 and 2010 witness statements that she solicited in support of her brother's case vis-à-vis her Facebook page.30 Accordingly, the court ordered that several witnesses be re-deposed at plaintiff's expense and also awarded defendants attorney fees and costs "'for the time and effort they expended in attempting to obtain discovery that they were entitled to receive."'31

Future Implications

Courts throughout the country, and particularly New York, are taking part in the social media debate and are consistently finding that social media is discoverable. For defendant's counsel, specifically in personal injury matters, it simply means they must keep doing what they have been doing and obtaining more information about the plaintiff. Defendants must continue to proactively search plaintiff's public social media sites, ask probing questions about social media membership, access and profiles during depositions and serve discovery demands once they detect inconsistencies between plaintiff's profile and injuries alleged. The courts have clearly demonstrated that they are not hesitant to provide this discovery.

One thing is clear, case law involving the discoverability of social media, just like social media itself, is here to stay.

Frank J. Lombardo is a partner at Malapero & Prisco specializing in construction labor law, insurance coverage litigation and negligence actions. Julie Anne Stein, an associate at the firm, contributed to this article.

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