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TORT REPORT: Litigation concerns in the information age

By Matthew Rosek

Matthew Rosek

Today, more than ever, electronic media is pervasive and readily accessible. In fact, some technology analysts estimate around 92 percent of created data is now stored electronically.

That means more and more personal data is accessible via the Internet or other electronic means, which factors into more and more court cases. Social media websites, in particular, have taken the inclusiveness of that stored data a step further. Information, pictures or discussions that used to end at the door of the local bar or coffee shop can now be broadcast to hundreds if not thousands of friends,” users or investigators on the Internet.

Social media posts in litigation

One of the ways posts on sites such as Facebook, MySpace and Buzz can be used is to prove a party is acting in some fashion opposed to the position it is taking in the litigation matter. For instance, a company employee may post about his or her workday and describe in detail information about a jobsite, client or other information that may be detrimental to a position his or her company is taking in litigation.

In years past, when defending personal injury or premise liability claim, a defense attorney who suspected a plaintiff was faking his or her injury would send out a private investigator to follow the individual and film the plaintiff performing restricted activities. Now, a post on Facebook, created by the allegedly injured plaintiff, admitting they “partied all night” or went surfing over the weekend, can end cases.

Requests for litigation holds on social media posts, company websites and other Internet media are imperative. Getting access to the information voluntarily posted by an opposing party can be pure gold.

Admissibility of social media posts

Fortunately or unfortunately, depending on your position relative to the sought-after information in a case, the rules of civil procedure have not caught up with the ever-advancing information age.

Although federal rules and some states are attempting to get a handle on electronic discovery, the advent of social media has taken the litigation world by storm.

A key question is, what is the admissibility of these types of posts in a social media setting?

The short answer: the admissibility of the information is no different then any out-of-court document created by the declarent. In other words, identify the material, have the witness authenticate it and have the witness testify about the post. I see no difference between a post on Facebook admitting a product was defective, an email stating the same or an internal company memo describing the product’s defect.

Generally speaking, the rules of evidence are broad enough in most jurisdictions to cover the admission of this type of information. I would even propose that if there is a question about what is contained on someone’s Facebook or other social media page that you ask that person in a deposition or at trial to pull up their personal page and go directly to the suspicious post. Of course, a post can be deleted, but then there are clearly spoliation concerns.

One golden rule to live by: there is no real privacy on the Internet.

Matthew Rosek is a senior associate at McCoy Law Group SC, Waukesha. The firm has a civil litigation practice that includes insurance defense, construction dispute and commercial/business litigation.

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