SC Lawyer, March 2009, #5. The Danger of Self-inflicted Damage on the Web. How the opposition can use your clients' own Web sites against them.

• Author: By Don P. Palermo

South Carolina Lawyer

2009.

SC Lawyer, March 2009, #5.

The Danger of Self-inflicted Damage on the Web. How the opposition can use your clients' own Web sites against them

South Carolina LawyerMarch 2009The Danger of Self-inflicted Damage on the Web. How the opposition can use your clients' own Web sites against themBy Don P. PalermoI would like to related a recent experience that our law firm had involving a young female client who was seriously injured. My hope here is that other plaintiff's lawyers will be on the lookout for the same potential problems and pitfalls.

Our case arose from a motor vehicle accident in which our client (we'll call her "Sue") was operating a small sports car that was violently impacted by a package delivery truck that had failed to yield the right of way. Sue's vehicle was knocked across the intersection and onto the sidewalk, where a street sign that had been torn off by the delivery track landed on the hood of her car. Sue was taken by ambulance to the emergency room and was placed in halo device for a fracture of her cervical spine. Sue also fractured her wrist and ankle and underwent surgeries to install plates and screws in those areas of her body. She later underwent an operation to remove the hardware from her ankle. She remained in a halo for two months and lost a significant amount of weight. Obviously she lost tome from work due to her injuries and was unable to return to her position full time as a result of the pain she experienced in her ankle from standing for long periods of time. She was left with scars from her surgeries. Clearly, Sue suffered several serious injuries.

As most attorneys probably do, particularly with significant personal injury cases, we warned out client to be on the lookout for surveillance vehicles once she was out of her halo and able to leave her house. After all, who has not been given surveillance tapes of a client the day before a jury trial? However, what we did not anticipate, and what some attorneys who have been practicing for a long period of time may also not expect, was the effect that such online Web sites as MySpace and Facebook can have on a case.

Facebook, MySpace and YouTube

Facebook is a free-access Web sie that was launched in 2004. Very user's profile page allows friends to post messages for users to see. Facebook has an application that allows users to upload photo albums and photos. It is the most popular Web site for uploading photos, with approximately 14 million uploaded daily, higher than its main competitor, MySpace.

Accoring to Wikipedia, MySpace is a social networking Web site founded in 2003. Users have personal profiles hat allow them to exchanged public and private messages and allow them to upload images, including photographs and videos. Myspace is similar to Facebook but is more detailed in the level of customization it allows users in decorating their Web sites.

YouTube first appeared in 2005 and its essentially an offshoot of My Space. It allows MySpace users to embed YouTube videos in their MySpace profiles. Since its inception, YouTube has become one of the fastest-growing Web sites.

Discovery, Mediation and Settlement

Our case proceeded through discovery. Our client was deposed and testified that the accident seriously curtailed her work and social life. Likewise, Sue's answers to interrogatories recounted her ongoing social and vocational restrictions as a result of the injuries she sustained in the accident.

We agreed to schedule mediation with the commercial defendant prior to trial. My partner kept asking me why I was not more optimistic about the case, given the clear liability, permanent injuries and a favorable venue. But I always had a feeling about this case in the back of my mind, something I could not put my finger on- that is, until the day of the mediation.

After the mediator met with both parties, he placed us in separate rooms. We had made a seven-figure demand and were expecting an initial offer that was commensurate with the seriousness of our client's injuries. When the mediator returned to our room, he simply slapped down a piece of paper containing dozens of photographs of our client taken after the accident. In almost all of the pictures, our client looked tanned and toned and was in the process of consuming an alcoholic beverage with her girlfriends. Even more alarming, there was a photograph of our client drinking at a bar with her friends while she was still in her halo! The mediator stated that the defendant had printed the photographs from our client's MySpace page. He relayed a low starting offer. We had basically been caught off guard. Clearly, the client had devalued her case and the defendant knew it. Although we never admitted it to the mediator, we believed that some jurors would have had an issue reconciling our client's ongoing complaints with the images that appeared on the Internet, which were certain to be enlarged and paraded in front of the jury at trial.

Upon our reutnr to the office, we immediately accessed our client's MySpace account and viewed all of the images ourselves. In addition to the pictures of our client imbibing at various taverns, there were many messages to and from her friends (some of which contained inappropriate language), as well as a video snippet our client had produced that portrayed her in a rather unflattering light, to say the least. There were even vague references to our ongoing lawsuit. Basically, we had opened a Pandora's box. We immediately advised our client to privatize her account, which means that only confirmed friends could access her data. The defendant's lawyers must have attempted to re-access our client's Web site, because after the site was privatized, the defendant's attorney demanded that we remove the restrictions. We considered filing a motion in mine to bar the introduction of our client's photographs and began researching the law with regard to whether information gathered from a person's Internet site would be admissible at trial. From what we could ascertain, there is not a lot of case law on this issue and this area of the law remains unsettled. Because we eventually resolved the lawsuit through a mediator at a later date, we never had to litigate this particular legal point fully.

Lesson Learned

There are many stories in the news reporting on how some employers have declined to hire job candidates after viewing photographs or videos on their MySpace and/or Facebook accounts. Likewise, there have been reports of individuals compromising their active criminal cases after investigators have obtained incriminating evidence from their MySpace and/or Facebook Web sites. The same may occur in a civil lawsuit when a person voluntarily disseminates information about him- or herself over the Internet for anyone to view.

Suffice it to say, we learned that with the click of a button a client can negatively impact the two years of hard work and expense that you put into a case. The most frustrating part of such a situation is that the defendant does not even have to expend any money on private investigators; the defendant can simply go online and use your client's own words and photographs against him or her. We now make it a routine practice to advise our personal injury clients to privatize their MySpace and Facebook accounts and watch what they are disseminating on the Internet while their cases are pending.