SOCIAL MEDIA IN PERSONAL INJURY LAW

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1 David K. Inscho Kline and Specter, P.C. SOCIAL MEDIA IN PERSONAL INJURY LAW The Internet isn t written in pencil Mark

2 Social Media Issues Discovery of Social Media Social Media in Investigation Social Media at Trial Social Media In Discovery What is and isn t discoverable? Not a lot of specific guidance. No Pennsylvania Appellate decisions.

3 Social Media in Discovery Start at the beginning Need to discuss social media presence at first opportunity. The duty to preserve evidence arises when a party reasonably anticipates litigation. When they are meeting with a lawyer they are anticipating litigation. Social Media in Discovery What advice do you give at the first meeting What is a client's internet presence? Be Private (adjust privacy settings) Know who your friends are Don t Delete, but be careful if you add/post/tweet/comment/etc.

4 Discovery of Social Media 1. Counsel the client 2. Look at social media yourself (See Client questionnaire in materials) 3. Look for what else it out there Social Media in Discovery No one puts their worst day on Facebook

5 Social Media in Discovery Beware of the Profile Picture Allegation: Seriously injured young man who... Can t prepare his own meals

6 Can t Operate a motorized vehicle Can t Engage in Recreation My Client??

7 Like Bike Riding... Discovery of Social Media Threshold Test To obtain discovery of private information contained on social networking sites, a party must, at a minimum, demonstrate that the information sought is relevant, and the requestor may establish the requisite relevancy by showing that publicly accessible information published by the user on the social networking account arguably controverts the account holder's claims or defenses in the underlying action. Brogan V. Rosen, Jenkins & Greenwald, LLP, 2013 WL (Pa.Com.Pl. Lackawanna County)

8 Discovery of Social Media At least two C.C.P. decisions have ordered that social media passwords be turned over to the defense. Both decisions were based on a showing that the public portions of social media sites contradicted allegations of the Plaintiff. Largent v. Reed, 2011 WL (Pa.Com.Pl. Franklin County) McMillen v. Hummingbird Speedway, Inc., 2010 WL (Pa.Com.Pl. Jefferson County) But See In re Milo's Kitchen Dog Treats, 2015 WL (W.D. Pa. 2015)(refusing request for password where plaintiff produced redacted responsive Facebook data). Ethics Break

9 Investigation Using Social Media Can you friend the opposing party? OF COURSE NOT!!! See Pa. R. Pro. Conduct Rule 4.2. Communication with Person Represented by Counsel. Investigation Using Social Media Can you friend a current or former employee of a party corporation? Depends... See Comment 7 to Pa. R. Pro. Conduct 4.2 In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization s lawyer is not required for communication with a former constituent.

10 Investigation Using Social Media Can you friend a witness who has given adverse testimony to your client? Yes, but... Pa. R. Pro Conduct 4.3 Dealing with Unrepresented Person. (a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. (c) When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer s role in the matter, the lawyer should make reasonable efforts to correct the misunderstanding. Investigation Using Social Media Rule 4.3. Dealing with Unrepresented Person. (a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. (c) When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer s role in the matter, the lawyer should make reasonable efforts to correct the misunderstanding.

11 Investigation Using Social Media Pa Bar Assoc. Opinion Lawyer sought to have 3 rd party friend adverse unrepresented witness for the purposes of obtaining access to witnesses social media sites. No way Investigation Using Social Media Pa. R. Pro. Conduct 8.4 It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

12 Investigation Using Social Media The possibility or certainty that the witness would permit access to her pages to a person not associated with the inquirer who provided no more identifying information than would be provided by the third person associated with the lawyer does not change the Committee s conclusion. Even if, by allowing virtually all would be friends onto her Facebook and MySpace pages, the witness is exposing herself to risks like that in this, excusing the deceit on that basis would be improper. Deception is deception, regardless of the victim s wariness in her interactions on the internet and susceptibility to being deceived. Pa Bar Assoc. Opinion Investigation using Social Media Justice for Tori

13 Investigation using Social Media Allows witnesses that you could not otherwise find to find you. Learn about prior incidents, complaints. Discoverable? Social Media at Trial Jurors use of Social Media/Internet Investigation of potential jurors using social media

14 Social Media at Trial Do Jurors use the internet and social media to investigate or publicize the case? Anecdotal Evidence Two jurors in Lackawanna county dismissed for posting about the trial on Facebook Florida Juror jailed for three days for sending friend request for defendant English juror jailed for eight months for communicating with criminal defendants English juror jailed for two months after posting that he wanted to F*** up a pedophile in a sex abuse trial Social Media at Trial Report by Federal Judicial Center in2011 Low incidence of juror use of social media (5.9% of judges). More common in criminal trials Most often reported by a fellow juror Jurors Use of Social Media During Trials and Deliberations, Meghan Dunn, Federal Judicial Center (Nov. 22, 2011)

15 Social Media at Trial Amendments to Pa. R. Civ. P. 220 effective October 1, (c) At a minimum, the persons reporting for jury service shall be instructed that until their service as prospective or selected jurors is concluded, they shall not: (3) use a computer, cellular telephone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during breaks or recesses but may not be used to obtain or disclose information prohibited in subdivision (c)(4); (4) use a computer, cellular telephone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about any case in which they have been chosen as prospective or selected jurors. Information about the case includes, but is not limited to, the following: (i) information about a party witness, attorney, judge, or court officer; (ii) news reports of the case; (iii) information collected through juror research using such devices about the facts of the case; (iv) information collected through juror research using such devices on any topics raised or testimony offered by any witness;. (v) information collected through juror research using such devices on any other topic the juror might think would be helpful in deciding the case. Social Media at Trial Rule continued... (d) These instructions shall be repeated: (1) to the prospective jurors at the beginning of voir dire; (2) to the selected jurors at the commencement of the trial; (3) to the selected jurors prior to deliberations; and (4) to the selected jurors during trial as the trial judge deems appropriate.

16 Social Media at Trial Rule Sanctions for Violation of Rule Any individual who violates the provisions of Rule regarding the use of electronic devices by jurors or who violates any limitation imposed by local rule or by the trial judge regarding the prohibited use of electronic devices during court proceedings: (a) may be found in contempt of court and sanctioned in accordance with 42 Pa.C.S et seq., and (b) may be subject to sanctions deemed appropriate by the trial judge, including, but not limited to, the confiscation of the electronic device that is used in violation of this rule. Social Media at Trial Rule Voir Dire (b) Voir dire shall be conducted to provide the opportunity to obtain at a minimum a full description of the following information...: (16) Ability to refrain from using a computer, cellular telephone or other electronic device with communication capabilities in violation of the provisions of Rule

17 Social Media at Trial Pa. Standard Jury Instructions I am well aware that in daily life, you may regularly communicate with friends and family through text messaging, e mail, Twitter, social networking websites, chat rooms, Facebook, MySpace, LinkedIn, YouTube, blogs, or other websites [insert any new social media examples]. Remember you must not communicate about this case in any way, even electronically (no texting, e mailing, tweeting, or posting).... I am well aware that in daily life, many of you regularly use the Internet to obtain all types of information. Anyone can put anything on the Internet and that information may or may not be accurate or reliable, and probably would not be admissible as evidence during a trial. Pa. Stan. Jury Ins (2014) Social Media at Trial Researching jurors ABA Formal Opinion 446 A lawyer is permitted to research jurors on the internet A lawyer may NOT send Friend request to a juror or potential juror If a lawyer learns of potential misconduct of a juror the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.

18 Social Media at Trial You can learn a lot about a person with a little information. Which juror do you want? Social Media at Trial Ran for school board and lost 2 years ago as Republican. Owns business making herbal wraps. Friends with United Cerebral Palsy

19 Social Media at Trial Warning Some aggregation web services and social media sites inform the user that someone has searched for them. ABA Formal Opinion This is not impermissible contact Potential reaction of juror. Thank You