December 14, 2012 Articles

Defense in the Age of Social Media

In this brave new digital world, attorneys are increasingly turning to social-networking sites such as Facebook to prove opponents' claims are baseless or exaggerated

By Angela C. de Cespedes Wenke

What can you do when faced with a party who is exaggerating injuries and limitations in an attempt to bolster a damage claim? In recent years, we have witnessed the advent of new, highly effective tools that are allies in combating this occurrence—social media and freely available online content.

As recently as 10 years ago, a private investigator and claims index searches were a lawyer’s best weapon in attempting to uncover exaggerated injury, physical limitation, and damage claims. Only five years ago, a tech-savvy lawyer could scour the Internet and hope to get lucky online. Today, however, to the delight of trial lawyers like myself, there is a whole new world. It is a world in which baseless or exaggerated claims by parties can be exposed, in many cases fully, as the result of items posted on social-media sites and a variety of other free avenues for online research—Facebook, MySpace, Twitter, Google, and Google Earth, to name just a few. Data and online content uncovered on such websites have led to favorable resolutions and the dismissal of a variety of different matters in which clients faced genuine liability concerns in the premises liability, product liability, personal injury, and business litigation arenas. In many cases, these results have been achieved without the need for lengthy discovery, motions to compel, or even subpoenas, given the gravity of the data uncovered.

Since 2010, there have been roughly 1,000 published decisions in the United States involving social-media evidence; a good number of these have been criminal cases. These decisions reveal that attorneys are using social-media evidence regardless of which side of the courtroom they are sitting in, and courts are allowing it. Many people are familiar with the most popular networking sites—Facebook, Twitter, LinkedIn, and MySpace—but do not realize that worldwide there are over 200 social-media networking sites with hundreds of millions of users. Facebook alone has more than one billion users who spend an average of 20 minutes per day on the site. This social- networking phenomenon, together with all of the readily accessible and free online content available, provides a vast amount of usable information for those who know how to uncover it.

Plan of Attack: Objectives

Immediately upon receipt of a complaint or demand, you should perform a background investigation of the adverse party to identify former and current names, aliases and addresses, former and current spouses, children and grandchildren, any affiliated businesses, and properties owned. It is best to conduct these searches before you respond to any initial pleading and before you serve discovery requests, which requests can be better tailored and more fruitful after you have conducted your research. Once you have obtained background information, you are ready to proceed with your initial online search. If possible, conclude your online search and preserve your findings as evidence before you send a litigation hold letter to the opposing party. You do not want to tip off the party and have it begin the process of attempting to conceal or delete online content prior to your initial search. Make sure that when you do send your litigation hold letter, you include all online content in your description.

The objective of undertaking this endeavor early on is to familiarize yourself with the opposing party and determine what that party’s motivations are. You want to try to get a sense of what the other side’s damage claim may look like and be in a position to evaluate the matter realistically, earlier than would otherwise be possible. This way, you can provide your client with a more accurate early assessment of the claim and streamline the discovery process, which, in turn, will allow the client to be able to set aside an adequate reserve. This data collection may also serve to facilitate an early resolution to the matter in some instances.

Examples of Outcomes Attained

In the following examples,  some minor details have been changed or excluded to conceal the identities and respect the privacy of the parties involved.

  • At the Gym. A teenage plaintiff claimed serious, permanent injuries and a variety of life-changing limitations in a matter in which liability against the defendant was provable by the plaintiff. Despite the plaintiff utilizing Facebook privacy settings, a Google search revealed that the gym frequented (but never disclosed) by the plaintiff did not. While the plaintiff testified to not being able to undertake any real physical activity, plaintiff was simultaneously posting several comments and photographs to the contrary on the gym’s Facebook page. In addition, on the eve of mediation a friend of the plaintiff posted pictures on Facebook in which the plaintiff was featured dancing and partying. A very favorable resolution of the matter resulted.
  • Questionable Behavior. A plaintiff asserted extensive monetary damages against a defendant but failed to place any privacy restrictions on various social-media pages. Statements made by the plaintiff admitting to less than colorable behavior, some of which was arguably illegal, resulted in a voluntary dismissal of the plaintiff’s claims before any formal discovery was conducted.
  • In the Backyard. A seemingly sympathetic plaintiff claimed serious injuries of a life-threatening nature and severe limitations in a matter in which the defendant’s exposure to damages was very high. An initial search of the plaintiff’s residence performed using satellite imagery on Google Earth revealed a boat and various boating-related items present in the plaintiff’s yard (items that would not have been visible by merely driving by the property). The boat was not owned or registered in the plaintiff’s name but was later discovered to be primarily used by the plaintiff. The plaintiff lied while giving sworn testimony about using any watercraft or taking part in any outdoor activities since the time of the injury, which activities the plaintiff was later shown to take part in on a regular basis through photo evidence stored online by a member of the plaintiff’s family.
  • Posting Perils. Married plaintiffs who had a viable loss of consortium claim for which defense liability was probable placed the highest available privacy restrictions on their own social-media pages. The plaintiffs’ family members, whose names were discovered as a result of a basic background search, did not. Several photographs of the plaintiffs in somewhat compromising positions were discovered and used to thwart the loss of consortium claim.
  • Walking the Dog. An elderly and very sympathetic plaintiff suffered what appeared to be a serious injury to the left knee for which defense liability was almost certain. The plaintiff claimed an inability to function and perform day-to-day activities as a result of the injury. A mountain of evidence was compiled from the plaintiff’s Facebook account, which not only indicated that the plaintiff was capable of performing all daily activities but also revealed that the plaintiff was attending dog shows on a weekly basis and had absolutely no problem in using the incapacitated knee in question. Under oath during deposition, the plaintiff denied participation in this type of activity . Photo evidence that was extremely harmful to the plaintiff’s damage claim was also obtained, in large part, from several dog show industry websites and Facebook pages that posted several photographs of the plaintiff. The data uncovered served as a basis for a motion to dismiss for fraud on the court, which was used as leverage to achieve a favorable resolution at mediation.
  • Dancing Like No One’s Watching. A plaintiff claimed a serious workplace injury to the back against a non-employer defendant, and damaging evidence pointed to liability on the part of the defendant. The plaintiff testified during deposition to an inability to perform most physical activity but was captured on video actively dancing and celebrating at several out-of-town family events in the time following the accident. The photos and videos were discovered as a result of connections made to family members using Google and Facebook. The searches culminated in the issuance of subpoenas to the family members, which resulted in the almost immediate resolution of the matter.
  • The “Expert.” A plaintiff claimed a serious injury, and liability turned on whether the entrance to the building in question violated the applicable building code. The plaintiff’s expert opined that the entrance to the building violated the applicable building code. A thorough background check of the opposing party’s building code expert, performed using Google, revealed several commercial buildings similar in nature to the building in question throughout the state on which the plaintiff’s expert acted as either consultant or architect. Satellite imagery from Google Earth identified several buildings that had entrances similar to the entrance of the building at issue. Several of the buildings inspected thereafter were found to have entrances identical to the entrance of the building in question, causing quite the dilemma for the plaintiff’s expert at deposition. The matter was resolved in a favorable manner as a result.

Potential Roadblocks

On some occasions, you will be unable to capture all available online content before taking a party’s or witness’s deposition because you do not know what the party or witness looks like, you are dealing with a very common name, or certain family members or associates could not be identified before the deposition. A request for a color copy of a party’s driver’s license to obtain an idea of what that persons looks like may assist in this regard. To the extent you suspect that useful data might be available online, a prudent course of action might be to take a paralegal, associate, or colleague with you to the deposition armed with a computer or mobile device and have that person perform the searches described in this article while the deposition is taking place, based on the information being obtained during the deposition. Although this may present an additional cost to your client, the data obtained may allow you to better tailor your deposition questions to bolster your defenses, which can be invaluable and well worth the extra expense.

Resources

The following are some of the more popular social-media and online resources:

  • Facebook /LinkedIn /Twitter: Although these searches can be time consuming until you are able to locate the parties or witnesses at issue or identify their family and friends, the potential for stumbling on priceless data and photo evidence that can be used to lessen or destroy a damage claim makes the endeavor extremely worthwhile and allows you to tailor your discovery and deposition questions to lead the plaintiff down a road from which there is no turning back. Compiling all of these data early on also allows you to target the efforts of any private investigator who may be hired at a later date to capture video evidence of the data obtained.
  • Google/Google Earth: Performing a basic Google search for someone’s name, business, or image can reveal the social-media sites and groups the person belongs to, the websites on which the person is mentioned or featured, and the like. Once you have obtained several physical addresses that may be related to a party, you can search Google Earth to obtain satellite imagery that may reveal certain vehicles parked outside a home or business, items of interest in a person’s yard, the condition of a person’s home, and so forth. This is also useful when you encounter a party or witness who resides in a private gated community.
  • Division of Corporations (e.g., Florida – Sunbiz.org) / Corporation Wiki: The discovery of failed and ongoing business concerns can lead to a variety of information regarding a party such as business partners and associates, past or current financial troubles, interests, and properties owned. Corporation Wiki’s “Connection Visualizer” will also tell you what individuals and entities are connected to your party or witness in any kind of business relationship.
  • Property Appraiser (e.g., Miami, Florida— Miamidade.gov: Parties may own or operate properties that are listed in a family member’s name or the name of a company in which they have an interest. This site has been particularly useful in discovering rental properties providing income either directly or indirectly to parties, which income they did not disclose when making significant lost wage claims.

The Ultimate Goal

Although a dismissal with prejudice with the possibility of obtaining attorney fees and costs is the ultimate goal, there are additional advantages to consider: for example, (1) being able to achieve an early resolution of a claim; (2) narrowly tailoring discovery requests, subpoenas, and deposition questions based on the knowledge obtained; (3) collecting evidence that might allow for a spoliation claim; (4) drafting effective motions to dismiss for fraud on the court; (5) bolstering motions for summary judgment; and (6) better positioning your client for a favorable outcome at mediation.

In short, it is our duty to implement and take advantage of all the weapons at our disposal, and the wealth of information that parties make available online, whether voluntarily or involuntarily, is as valuable as any asset at our disposal. Parties must proceed cautiously and at their own peril, always assuming that the other side knows more about them than they would like to think—the other side knows what you like, what your hobbies are, who your relatives and friends are, the establishments you frequent, what you are capable of, what items are located in your yard— and has the pictures and posts to prove it.

Keywords: litigation, trial practice, social media, online content, evidence, damage claims, Facebook, Twitter, Google, background check


Copyright © 2012, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).