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SOCIAL NETWORKING: A GOLD MINE FOR DEFENSE LAWYERS

Posted by Susan J. Levy

Last week, I got lucky. For the first time, I actually found a Facebook page belonging to a Plaintiff in one of my cases: profile, wall, photos, the whole nine yards and, just 24 hours before her deposition. No smoking gun, unfortunately, but enough to make the Plaintiff and her lawyer very uncomfortable. First, I led her down the garden path. She eagerly testified about her constant neck and back pain, her inability to walk her dogs, and the overall decrease in her quality of life. Then I pulled out her Facebook posts, dating back several months, replete with status updates about walking the dogs, bathing all four dogs, and daily exclamations that “life is good.” Not one mention of neck or back pain. Suffice it to say that her privacy settings were changed, and the demand lowered by 25 percent, before the end of the day.

The Plaintiff’s attorney mumbled during a break that Facebook is the bane of every Plaintiff’s lawyer’s existence. That may be true, but lawyers on both sides of the bar and our clients need to learn about social networking and so-called privacy settings. In the United States alone, 35% of adult Internet users and 66% of Internet users under the age of 30 have a personal profile on a social networking site. See Amanda Lenhart, Pew Internet Project Data Memo 1, Pew Internet & American Life Project (Jan. 14, 2009). Over 500 million people actively use Facebook, 50% of whom log in on any given day. http://www.facebook.com/press/info.php?statistics. These sites are cyber gold mines for lawyers looking for scoop on parties, witnesses or even prospective jurors.

Privacy settings may even be circumvented. One New York Court recently compelled access to “Plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information on these social networking sites which [were] believed to be inconsistent with her claims . . . concerning the extent and nature of her injuries, especially her claims for loss of enjoyment of life.” Romano v. Steelcase, Inc., and Educational and Institutional Cooperative Services, Inc., 2006-2233 NYLJ 1202472439237 (Supreme Court, Suffolk County, NY, Sept. 21, 2010) . See also a divorce case in Ohio where in considering a child’s best interest, the court considered the mother’s Myspace musings about illicit drug use and her interest in sado-masochism. Dexter v. Dexter, 2007 Ohio Ap. LEXIS 2388 (May 25, 2007).

The lesson to be learned is that what happens on social networking sites does not stay on social networking sites. Moreover, there is now judicial precedent, albeit in New York, for discovering so-called “private” and deleted information. Use it to your advantage.