ILNews

Lawyers look to Internet, social media for clues

Jenny Montgomery
July 20, 2011
Back to TopCommentsE-mailPrintBookmark and Share
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.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

ADVERTISEMENT