Plaintiffs’ attorney Jonathan P. Groth recently handled an automobile accident case where his client’s alleged contributory negligence was at issue.
Groth did a quick Google search and found the defendant’s public MySpace page, where he had written about how tired and rushed he felt before the accident, even though he had previously insisted he was well-rested and not hurried.
Once the trial team at Groth’s firm, of Pitman, Kyle & Sicula S.C. in Milwaukee, brought the page to the defense’s attention at a deposition, they conceded liability.
In another case, Groth was contacted by the parents of an injured teen seeking representation. During the intake telephone call, he Googled the girl’s name and found her MySpace page. He asked her and her parents to print out all of her entries on it when they came in for an initial appointment.
Once Groth read her MySpace page, it was evident she would make a poor witness and had treated her injury as a joke rather than something serious. He declined the case.
These are just a few very recent examples of finding “smoking gun” evidence on online social networking sites. In the first case, it made a significant difference in the client’s recovery. In the second case, it saved Groth from taking on a case that would have been a waste of time and money.
“In the past, it was standard procedure for us to just ‘CCAP’ prospective clients,” he said. “Now you have to take it one step further, by Googling them.”
How to proceed
Groth suggests using multiple search engines, and going beyond just the first or second pages of results. Make sure you’re spelling the surname correctly, and try various versions of the first name – both “Jon” and “Jonathan,” for example.
Kelly L. Centofanti, a plaintiffs’ lawyer with Centofanti Phillips SC in Mequon, said that she has “added language to my retainer agreement giving me the right to access all of my clients’ social media and give thumbs-up or thumbs-down on any postings that might have an effect on their lawsuits.”
“Ninety-nine percent of the time, this would never come into play,” she said. “But it’s not hard to imagine a seemingly harmless joke between friends that … might look very bad in the harsh light of the courtroom.”
If you didn’t adequately investigate your own client’s online social networking and subsequently stumble upon evidence that weakens your case substantially, cut your losses and drop the client, advises Groth.
He said it’s safe to assume that just about everyone in their 20s and younger has some sort of online presence in the various networking sites — although now Facebook especially has caught on with Gen X and the Boomers, too.
When doing research on the opposing party, sometimes the information is easy to access because it’s right out there on the Internet for all to see.
But other times someone may have locked down the information fairly tightly via the site’s privacy settings. That’s when formal discovery comes into play. Centofanti pointed out that there’s little or no case law on whether someone has any expectation of privacy with Facebook. To her way of thinking, however, the Internet is public domain — asking for Tweets or Facebook communications probably wouldn’t be viewed any differently by an appellate judge than asking for someone’s e-mails.
It’s a gray area as to whether an attorney’s agent — a paralegal or private investigator — should attempt to “friend” the other side in hopes of surreptitiously discovering information.
On one hand, Centofanti said, “It doesn’t smell good. But then again, if the other side is dumb enough to friend someone they really don’t know, isn’t that the breaks?”
The safer route may be to incorporate investigating such sites into your standard formal discovery procedures, if you haven’t already. Groth has already served several subpeonas duces tecum before depositions on defendants, asking them to bring print-outs of all online networking activity. On the record, he asks for passwords and has checked out sites during proceedings.
He hasn’t encountered anyone “sanitizing” Facebook or MySpace pages — yet. But it would be simple to find out if that had taken place using the Internet Archive Wayback Machine.
He said that if he sees evidence of tampering, he will push for an instruction that the deleted material be presumed damaging to the spoliating party.