Lawyers look to Internet, social media for clues

Jenny Montgomery
July 20, 2011
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Indiana Lawyer Focus

Attorneys have a message for the public: Be careful about what you post on Facebook, because lurid photos or incriminating statements may end up on the docket.

Social media like Facebook, MySpace, and Twitter have become valuable resources for lawyers looking to build a case for their client. For example, with a minimal amount of research, a lawyer may be able to show that a litigant was skiing in the Alps when he claimed to be bedridden from a workplace injury. And with more users signing up daily for social media accounts, their use as evidence is likely to become commonplace.

The smoking gun

lonnberg-kelly-mug Lonnberg

Kelly Lonnberg, of Evansville’s Bamberger Foreman Oswald & Hahn, began practicing law 15 years ago. Over time, she has watched the evolution of social media and its effects on family law matters like divorce proceedings and custody hearings.

“People make comments on Facebook that continue to surprise me,” she said. “Almost everybody who at one time was married, they’ve got mutual friends in common, and those things (said on social media sites) get back to each other.”

A case that illustrates what can happen when people forget who is paying attention to their social media pages originated in Arkansas. In Kathleen Lipps v. Robert Lipps, No. CA09-1108, Robert Lipps, a member of the Arkansas National Guard, was on active duty in Iraq when he saw pictures on his wife’s MySpace page of her and another man lying in bed together. Lipps filed for divorce one day after returning from Iraq and ultimately won custody of the couple’s infant son.

vanostrand-amy-mug Van Ostrand

In custody disputes, Lonnberg said, Facebook posts can give the opposing counsel more support when arguing that a parent is unfit.

“References to activities that either are not consistent with their testimony at trial or are supportive about the other party’s references to unfitness” are sometimes found on social media pages, Lonnberg said. “I’ve even had cases where people were critical of the judges and put it on their Facebook account.”

Amy Van Ostrand, an attorney with Hensley Legal Group in Indianapolis, represents primarily personal injury plaintiffs. She advises her clients to think of all their social media as a public diary.

“People easily forget or maybe don’t understand the implications that when they put this info on social media sites … that content is being shared with so many people, you have a very limited expectation of privacy,” she said. “I tell them the best thing to do is to really shut down their social media. I’m always struck by the degree to which new clients seem startled at the prospect of shutting down their social media sites.”

Discoverability and admissibility

An Indiana case – E.E.O.C. v. Simply Storage Management, et. al. No. 1:09-cv-01223 (S.D. Ind. May 11, 2010) – may offer a cautionary tale for anyone who thinks that Facebook or MySpace content is shielded from discovery.

In that case, two employees claimed that their employer was liable for the behavior of a supervisor who sexually harassed them. The plaintiffs claimed emotional distress as a result of the alleged harassment, and counsel for the defense filed an order on discovery seeking content from their Facebook and MySpace accounts. The defense argued that postings the plaintiffs made on these sites would provide relevant information about their mental well-being. The court agreed.

orenstein-aviva-mug Orenstein

Aviva Orenstein, Val Nolan Faculty Fellow and professor of law at Indiana University – Maurer School of Law, said that in any case where victims claim serious emotional or physical distress, what they say through social networks is relevant.

“This is a subset of the fact that we have in a global sense traded openness for privacy,” she said. “And people may have unrealistic expectations of what they can keep private.”

Lonnberg said that when she has used Facebook content as evidence, it’s usually because a third party forwarded her the information. She said judges may tend to look more favorably on evidence discovered in that manner.

“They always like things to come from people who don’t have a dog in the fight, of course,” she said. “If you have a neighbor or mutual friends who can’t be said to have a strong opinion as to the outcome – people who seem more neutral, such as teachers, mutual friends, the softball coach – the people who wouldn’t necessarily be rooting for one side or the other,” she said, they will be an effective source for this sort of information.

bodensteiner-ivan-mug Bodensteiner

Valparaiso University School of Law Professor Ivan Bodensteiner said he does not think the use of evidence gathered online poses any dilemmas regarding admissibility.

“If I send a text to someone, I send an email to someone, I post something on a social network, it seems that all of those are the equivalent of me writing a note and maybe throwing it in a waste can, and maybe somebody finds it,” he said.

Orenstein said that authenticating a statement made through social media is similar to how courts determine that a signature on a contract is legitimate.

“The judge does the first test on authentication,” she said. But if that authenticity cannot be validated, the jury will be asked to help make that decision.

Sonnberg said one drawback to using online statements as evidence – particularly in instances where a party has made a threat to harm someone – is that the court doesn’t know the intent behind the statement.

“That’s regularly a source of cross-examination … when you don’t have tone and demeanor to go along with it, it’s very difficult to decide. I don’t think you have nearly as much in the way of evidence if you have a text or an email or a Facebook post.”

Digging for dirt

Before the advent of social media, attorneys often relied on private investigators to conduct surveillance of parties and gather information for a case. Nowadays, a simple Google search may be able to produce the same results, at no cost to the attorney. But a fine line exists between gathering evidence and violating ethical standards.

In 2009, a Pennsylvania lawyer suspected that a woman may have posted information on social network sites that could undermine her credibility as a witness for the opposing counsel. After trying to access the pages and finding they were restricted to friends only, he wondered whether hiring someone to friend the witness would be unethical. He sought the advice of the Philadelphia Bar Association Professional Guidance Committee.

In its opinion, the committee said that when videotaping the public conduct of a plaintiff, the videographer follows and records the subject as she presents herself to the public, but does not have to ask to enter a private area to make the video. Hiring someone to friend a party in a case, the committee stated, would be unethical deception.

Going forward

Bodensteiner said when debating the merits of using social media as evidence, relying on rules that have applied for years in law will help people determine whether the evidence is worthy.

“I think the starting point is – in trying to analyze it – is to not get too hung up on the fact that it happens on Facebook or some other social network,” he said. “Treat it as a statement made by someone – there are all kinds of ways to make a statement – and then apply the rules accordingly.”

Van Ostrand said, “I think that as the use of the social media becomes more and more ubiquitous it’s going to become a routine part of discovery. Those few decision that are out there seem to suggest that authentication issues are not serving to exclude the evidence.”•


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