Use social media for personal injury litigation preparationby Peter Nero, November 14th, 2011
Personal injury, commercial trucking and wrongful death legal proceedings require from lawyers thorough preparation.
Social websites give an opportunity of "self investigation" that may provide useful information to both sides in personal injury litigation. Talk with your client whether any MySpace, Facebook, YouTube, Google Plus or other social media accounts may affect the case. As an alternative, warn your client that the other side will find and use any information available online. Pay maximum attention to the information security. Facebook users, for example, should select friend requests extremely careful and add to friends only people they closely know offline. Next point is to disable public search and remove all updates and interests from the public profile. Litigation party should set the highest possible privacy secure settings, remove or "untag" any pics other than only head shots. Your client also must avoid any discussion of the lawsuit or injury accident in any social media profile and emails (except attorney-client confidential communication). At the same time, you should immediately start a web and images online search on the opposing parties. Download and print color copies of whatever you find. It is important not to use subterfuge to "friend" any person in order to gain access to profile information or photos. It would be a violation of the Rule of Professional Conduct 8.4(c) which states that attorney shall "not engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Read more about it in Professional Guidance Committee of the Philadelphia Bar Association [Opinion 2009-02]. The Stored Communications Act, 18 U.S.C. §§ 2701-11, provides civil and even criminal sanctions for unauthorized access to stored conversations, and has been used in litigations related to access to social media. See, e.g. Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J.)(employer access to worker's social media delictual irruption of privacy and SCA violations); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 880 (9th Cir. 2002)( wrongful access to employee's private online postings and false pretenses). Whether or not social media communications are removed or secured by privacy settings, they likely saved in corporation's computers and could be discoverable. Growing body of law rules discoverability of social media communications regarding the Stored Communications Act, 18 U.S.C.A. § 2702(a)(1), (2). See, e.g., Evan E. North, Facebook Isn't Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1279-1309 (2010); Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. 2009). By Attorney Online All content on Accidents.com is for informational purposes only and is NOT intended as legal or medical advice. Please seek advice from a professional on any related topics.
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