Things the Best Trial Lawyers Want You to Know

We’re often asked by clients and friends to reveal the “secrets” of avoiding a lawsuit—or winning, if you must have one.  There aren’t many true secrets in the law or the court system.  But along those lines, we’ve decided to publish a series of posts discussing (in no particular order) the important things that the best trial lawyers want potential clients to know.  Here’s the first. 

Your Facebook Page Might Become Evidence in Your Case

So many people today publish information about themselves on Facebook (along with Twitter, MySpace, and other social networking sites).  Many of them assume their posts are private, or at least restricted to their accepted friends or followers.  But more and more courts now require parties in lawsuits to permit their opponents to discover the contents of their social networking sites. 

That means, if you sue someone for damages, your opponent (or their insurance company) may be permitted to access your Facebook page--and not just the parts you make public, but also your log-in information, your posts to friends, your photo albums, and your messages.

Companies being sued in injury cases now aggressively seek this type of information in court.   In one recent case, a woman sued a drug company, claiming their product seriously damaged her jaw.  Her profile picture (which was publicly accessible) showed her “smiling amongst a group of people,” which the defendant drug company claimed was evidence about whether she was truly injured.  Seeking to wriggle through that wormhole, the drug company demanded discovery of everything on the woman’s Facebook page.  The case is Davids v. Novartis Pharm. Corp., No. CV06-0431, (E.D.N.Y. February 24, 2012).

While that company ultimately failed to get discovery of everything they wanted, numerous courts have ruled that the contents of a person’s social networking site, such as Facebook, are discoverable by an opponent in litigation, even if the site is kept private on the internet.  In fact, the majority of reported decisions require a litigant to produce at least some information from their social network sites.  

There are several lessons to learn here, other than the most obvious (namely, whether or not you might become involved in litigation, be careful about what you publish about yourself online):

·        Check your security settings to restrict the general public from accessing your site, if at all possible. 

·        Make sure you tell your attorney if you have a Facebook page, Twitter account, blog, or something similar. 

·        Assume that your opponent and their insurance company are monitoring your site and will use any information they can find to try to hurt your case; consider curtailing your activity while your case is pending.

·        If you are involved in litigation, do not delete or otherwise destroy posts or photos on social networking sites without first getting your lawyer’s advice—you don’t want to be accused or sanctioned for destroying evidence.

·        As always, use common sense about what you discuss with people, online or elsewhere.