Defense Lawyers & Insurance Companies Want Your Facebook Information - How They'll Try To Get It
Brett EmisonJune 13, 2012 10:12 AM
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Florida Defense Lawyers want your Facebook information. They want your Facebook information (and your friends) so bad that two defense lawyers wrote an article for the Florida Defense Lawyer magazine (yes, they have a magazine) describing how they will try to get your Facebook information.
Their article starts with the premise that, as of December 2011, 152.5 million people were posting monthly on Facebook accounts and, based on those figures, "it is likely that a personal injury plaintiff may have an active Facebook account."
But, the Defense Lawyers wondered, "how can you access that information for litigation?"
Facebook can provide a treasure trove of information in litigation. The American Academy of Matrimonial Lawyers says that 81% of its members have used or defended against evidence from social networking sites.
- Florida Defense Lawyers
So, how will Defense Lawyers and the insurance companies they work for try to access your Facebook information:
1. "At the beginning of a case, counsel should search the internet for plaintiffs' names to determine whether they have accounts with Facebook or other social media websites."
These Defense Lawyers know that information available will vary depending on privacy settings set by the user. However, in the defense lawyers' experience, "most public Facebook profiles reveal some photos, number of friends, and minimal personal content." They recommend defense lawyers print out this information and note the date.
2. "As your case progresses, it is a good idea to revisit and re-print the person's profile."
Defense Lawyers claim that "public content, and any changes may be important in persuading a court to permit access to the Facebook account and you should consider attaching these as exhibits to a Motion to Compel."
3. Use formal requests like examples given in the article.
These Defense Lawyers provide examples of the requests they would send. The samples provide request the Court to order production of the individual's username and password or the entire content of the social media site for the preceding 5 years.
If Plaintiff has Internet social media website account(s), please provide her username and password or, alternatively, ... please provide a copy of all non-privileged content/data shared on the account in the last five (5) years.
- Florida Defense Lawyer Request For Information
4. Defense Lawyers will be ready for your objections.
"Plaintiffs generally object to social media discovery on the basis of relevance, privilege, and the Stored Communications Act." Defense Lawyers will try to get around the valid objections by claiming that the Facebook (and other social media) information might be relevant to the injured person's physical condition or even jurisdictional issues.
5. Defense Lawyers will try to get your deleted Facebook information.
"There is some risk that litigants may delete posts or close their accounts to avoid discovery. For this reason, the [defense lawyer] authors include in their discovery requests an interrogatory asking" the following:
For any accounts identified in Answer to the Interrogatories above, please describe any changes you have made to your privacy or other account settings, and describe any content which you have deleted or erased after [a relevant date].
Defense Lawyers will also try to force an authorization to require Facebook to provide your account information directly to the Defense Lawyers and insurance company.
6. What Defense Lawyers can't find online, they will try to get from you (and your friends) in other ways.
"If a plaintiff's public Facebook information is not revealing but you suspect that they are sharing information with their approved 'friends', questions in depositions of both the plaintiff and family members about the nature of the plaintiff's posts may be helpful in laying a foundation to compel production."
7. Defense Lawyers don't care about your privacy.
"Objections based on privacy, confidentiality or privilege are another common line of attack on social media discovery, but these objections have been uniformly rejected by courts addressing the issue." These Defense Lawyers even noted a decision ordering production of Facebook and MySpace entries made by minor children.
8. Defense lawyers don't care about the Stored Communications Act either.
"Finally, plaintiffs may raise objections to social media discovery based on the Stored Communications Act ("SCA"), 18 U.S.C. § 2701 [which adds some 4th Amendment protections to digital and electronic communications] .... That said, the SCA is not an impediment to discovery from an individual plaintiff."
This article shows the lengths Defense Lawyers and the insurance companies they work for will go in order to obtain your unlimited Facebook and social media history. While some courts do let Defense Lawyers and insurance companies get away with this conduct, many other courts are upholding the right to privacy - even in litigation.
Eric Turkewitz at the New York Personal Injury Law Blog has written on this subject several times. I suggest you read Eric's posts on this subject:
I won't repeat all of what Eric said -- you should read his posts yourself. However, the short takeaway is that many courts are rejecting the Defense Lawyer premise that injured victims have put their entire life at issue on trial simply by filing a lawsuit to recover from the person or corporation that injured them.
In the Novartis decision that Turkewitz discussed, the court ruled that the Defense Lawyers failed to meet their burden in showing "some factual predicate, like an individual's public postings, from which the court could infer that relevant information exists on the individual's private page." Importantly, the court also noted that a single photograph will not confirm nor contradict claims of pain or suffering nor would it suffice as the basis for further search into the Plaintiff's social media account.
Broadly worded and overreaching discovery into Facebook and other social media accounts are classic examples of what are commonly referred to in the law as "fishing expeditions." Defendants have no idea what they might find, but engage in this overreaching discovery hoping to (1) pressure the injured victim into withdrawing or submitting because of the overly broad and irrelevant discovery; and (2) hoping to find some "evidence" Defense Lawyer can twist on cross-examination.
Injured people don't put their entire life on trial just because they utilize the 7th Amendment to protect their rights. An injury does not put into issue all of a person's communications, emails, letters, tweets, or photographs. Courts should be mindful of privacy issues for all involved and should not permit fishing expeditions like that suggested by the Florida Defense Lawyers.
That said, all of us should be concerned about Facebook privacy, particularly if you have been injured by someone and might need to protect your rights in court.
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(c) Copyright 2012 Brett A. Emison
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