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In spite of the fact I often tell people I am a “Recovering Attorney,” I remain very interested in how the courts are ruling on social media issues. Call it intellectually stimulating. There was a case in Pennsylvania in May that caught my eye. In this case, Zimmerman v. Weiss Markets, Inc., Judge Charles H. Saylor of the Court of Common Pleas of Northumberland County, Pa. issued a ruling analyzing the world of social media.
In a June 14, 2011 article, Peter Pachal writes about a report that Facebook had lost 6 million U.S. users in one month. He noted this amounted to a four percent decrease in the 150 million or so U.S. user base. Just to put that in perspective, 150 million users is about half the U.S. population. I make note of this to emphasize the large number of people in the U.S. who are sharing information, photos and videos on Facebook. This doesn't even address what's going on in the other social networks. It seems to me, the “Recovering Attorney,” this sharing of information is going to have some effect on divorce, employment, and personal injury cases. Other types of cases too. And it appears Judge Saylor agrees with me.
In the Zimmerman case, the plaintiff requested damages for an accident that occurred while he was at work and left him with a scar on his leg. The plaintiff testified in his deposition that he was embarrassed by the scar. He testified, under oath, he would not wear shorts and the injury and resulting scar had diminished his enjoyment of life.
In the normal course of preparing his case, the defense counsel reviewed the public portions of Zimmerman's Facebook and MySpace pages and found photos of him wearing shorts and taking part in life's normal activities. Defense counsel then requested plaintiff provide access to the non-public portions of those pages and Zimmerman refused to provide access based on his privacy rights.
Judge Saylor was having nothing to do with this. Citing cases from other jurisdictions he ordered Zimmerman to provide all passwords to his Facebook and MySpace accounts and refrain from altering the information on those sites at the time. Judge Saylor noted that “liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal.”
Judge Saylor went on to say that regardless of privacy settings, “Facebook and MySpace do not guarantee complete privacy,” and, “With the initiation of litigation to seek a monetary award based upon limitations or harm to one's person, any relevant, non-privileged information about one's life that is shared with others and can be gleaned by defendants from the Internet is fair game in today's society.”
This leads me to ask if we are now living in a time when immediately following the filing of a case, opposing counsel performs a Google search and begins to look at all available public information posted by the plaintiff or by known witnesses. Will attorneys now create lists of discovery requests for online postings, status updates, blog posts, photos and YouTube videos? If the information requested fits the case facts may attorneys now ask plaintiffs and witnesses to employ Facebook's “Download Your Information” feature and download all of his Facebook information to a zip file? Is the information contained on YouTube, Vimeo, LinkedIn, Plaxo and Yelp also fair game, depending on the facts of the case?
I've already written about the Ethics Opinion in Philadelphia that prohibits an attorney from “friending” a party, or directing someone else to “friend a party to secure information to use at trial. But, even that opinion doesn't prevent an attorney from asking these types of questions during the discovery phase of the case.
As I said earlier, I find all this to be very interesting. There are messages here for attorneys, plaintiffs, defendants and witnesses. I suppose the message is still “Think before you Tweet,” post status updates, or upload photos or videos to the social sites in which you participate.
About a year ago, I eliminated most of my “friends” on Facebook. I figure that if I don’t talk to them on a regular basis, I don’t need them as a friend. Got my list down from 300 to about 80 people.
Reading your article, I will probably cut a few more off that list and continue with my practice of not putting personal information on Facebook. Any of my family photos that I want to share go into a secret group shared with only a handful of people.
It is not that I want to sue anyone, but I recognize the fact that courts can and will look at the web to find out about you if there is a case.
Sounds like you have a good plan already in place Bill. It’s kind of like when I told my kids not to post anything on any site they didn’t want me, their grandmother, or some future potential employer to see. When I told them, they rolled their eyes like I was out of my mind and over protective. Now they just thank me.