Poking Around Facebook Could Win Your Case

By Liz McKenzie

Law360, New York (February 04, 2010) -- As more and more courts rule that anything you say or do on Facebook can and will be used against you in a court of law, the social networking site is becoming a powerful game-changer for attorneys on both sides.

Though Facebook profile information has already been used extensively in criminal proceedings, and, increasingly, marital disputes and divorces, attorneys are finding that photos, status updates and even friend lists can prove helpful in an array of legal matters.

In January, a judge overseeing the welding fume multidistrict litigation in the U.S. District Court for the Northern District of Ohio dismissed a welder's product liability suit after defense lawyers uncovered photographs of him on Facebook racing motorboats despite his disability claims.

Plaintiff Ernest Ray was one of thousands of welders whose cases were consolidated in the multidistrict welding fume litigation alleging that fumes from the defendant companies' rods were highly toxic when inhaled and caused manganese poisoning, a permanent neurological disorder.

But defense attorney Stephen Harburg of Skadden Arps Slate Meagher & Flom LLP said in a Jan. 12 hearing that they found photos of him engaging in water sports despite claims that he had been disabled since 2004.

“With a little bit of research, not taking what he said at face value but taking it at 'Facebook' value, we were able online to discover pictures of him in motorboat races,” Harburg said at the hearing.

John G. Browning, a partner at Thompson Coe Cousins & Irons LLP and author of the upcoming book “The Lawyers Guide to Social Networking,” says he has culled game-changing evidence from Facebook.

And he’s not the only one; lawyers from a number of practice areas — including personal injury, products liability, employment law, trade secrets and insurance defense — are now flocking to Facebook during discovery.

Given that a single Facebook profile can contain up to 40 pieces of information — including name, address, photos, status updates, interests and friends — it’s no wonder that attorneys are embracing the technology.

“It started out in criminal cases, but I think as more and more people get onto Facebook and as lawyers realize what a treasure trove of potential information is out there, you are going to see more sophisticated cases using Facebook,” Sheppard Mullin Richter & Hampton LLP partner Daniel L. Brown said.

Criminal prosecutors were some of the first to recognize Facebook’s evidentiary potential and have used information mined from Facebook profiles to prove everything from ownership of a weapon to intent to cause harm and lack of remorse.

“For criminal cases, a lot of the prosecutors will bring in information from someone’s profile to show a judge that a drunk driver will continue to party and drink,” said Carole Levitt, a former lawyer who now runs Internet For Lawyers, a consulting firm that educates law firms on harnessing the Internet and technology for legal purposes. “It’s also used a lot in sentencing.”

There was even a bank robber who was nabbed by authorities after updating his Facebook status to say “on the run.”

On the flip side, a lucky few have also used Facebook to escape criminal charges.

In October, police dropped charges against a Brooklyn teen accused of robbery after his defense attorney proved he had posted a status update asking “Where’s my pancakes?” on Facebook from his home computer during the time of the alleged robbery.

Though it may come as a surprise to many social networking users, courts have continued to hold that virtually anything posted online is fair game in court and can be used in discovery.

Last year a Canadian court ruled that a defendant in a motor vehicle action could compel Facebook evidence from a plaintiff even though he had implemented privacy settings restricting access to his profile.

“A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly available profile,” a justice for the Superior Court of Justice for Ontario ruled. “Any invasion of privacy is minimal and is outweighed by the defendant's need to have the photographs in order to assess the case.”

The judge further found that the plaintiff could not have a “serious expectation of privacy,” as his “private” profile still granted access to 366 friends.

“The judge in Canada basically said I don’t care that your profile is private, you put your whole life out there and I’m going to let it in,” Levitt said. “Profiles are just like diaries, and judges let diaries into evidence.”

Attorneys say that in practice areas such as personal injury, insurance and employment, seeking out information from Facebook is already becoming common practice.

“Lawyers are realizing that this is a goldmine of information,” Toronto-based Cozen O’Connor attorney Pamela Pengelley said. “It’s pretty much standard that you subpoena Facebook when you get a personal injury action. It’s not a substitute for having a private investigator, but people will put up incriminating photos online without realizing that there can be consequences in a lawsuit.”

Pengelley said it was most effective in lawsuits where plaintiffs are claiming an injury, such as when their health or ability to work has allegedly been impaired.

The use of Facebook evidence in employment disputes is also skyrocketing, especially in noncompete, trade secrets and sexual harassment suits.

Browning says some departing employees, unaware that Facebook could come back to the haunt them, may post proprietary information or disparaging comments about their previous employer and even boast about starting a new business with former colleagues.

In sexual harassment suits, defense attorneys may try to dig up seemingly promiscuous photos or comments from the plaintiff.

“In your typical sexual harassment case, the plaintiff comes across as shy and demure, completely shocked by their offensive work environment, but sometimes when you look at their Facebook page it looks like outtakes from a ‘Girls Gone Wild’ video,” Browning said.

Brown, who specializes in antitrust at Sheppard Mullin, also says there are plenty of ways the social network can prove fruitful even though his practice area may not be as likely to yield results from a Facebook scan.

“It’s not likely that someone is fixing prices with a competitor on Facebook, but there is certainly nuanced information that can be pulled from it,” he said.

Even learning that an individual is “friends” with someone on Facebook can be evidence of a relationship between two parties and could lead to an inquiry that opens a case, he said.

Facebook is also helpful for tracking people down, and some attorneys have used the personal addresses posted on Facebook to serve subpoenas on difficult-to-locate witnesses and other parties.

There is also a chance that the Web site may become a regular source of evidence in securities lawsuits following a determination reached in January by the Financial Industry Regulatory Authority. FINRA warned that posts or investment recommendations on blogs or social networking Web sites by brokers and advisers were subject to federal securities laws.

Brown says that, subject to rules of evidence and ethical rules, virtually anything on Facebook is fair game.

“The general advice is what you write on Facebook is most likely discoverable and you should be careful,” he said. “Once you are involved in litigation you should almost assume that information is discoverable.”

But, of course, existing rules of discovery and communication still apply to social networks, he added.

“Communication that’s in electronic form, whether it’s a blog entry, an e-mail or a posting on Facebook, shouldn’t be treated any different,” Browning said. “Ethically the same thing applies.”

Attorneys also said that the practice of seeking out evidence from Facebook will only continue to rise, especially as the young adults raised on social networks rise through the business ranks and continue to enter the employment world.

“I really believe that as it becomes more pervasive and as the younger generation become owners of businesses and are tweeting and using Facebook it will be even more relevant,” Brown said.

“There is this generational shift where digital openness has become the norm,” Browning said. “We’re only going to see more of this — that’s very clear.”