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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  1. Mr Smith, while most reading these posts are too busy making money or cranking out what passes for justice in our legal-techocrat order,I have often attempted to resist your cynicism, well thought out cynicism I admit. Please know that I give up, I can resist your logic no more. From Locknarian Platonic Guardians, through the incorporation doctine, to substantive due process, to Roe, to the latest demands that all states redefine the foundational stone of all civilized social order, the history of America's fall from Grace is inscribed on the dockets of the judiciary. From the federal judges' apostasy of a kind that would have caused John Jay to recommend capital punishment, to the state judges' refusal to protect the sanctuary of the state constitutions, seeing in them merely a font from which to protect pornographers, those who scream "f*ck the police" and pemubras and emanations following the federal apostates, it has been the judiciary, by and large, that has brought the Experiment in Ordered Liberty to an end. The Founders had great and high hopes that they had designed the third branch to save the Republic from such a time as this ... rather the third branch has allowed itself to be used to drag the Republic into rat infested sewers from which no nation has ever returned. Save me from tomorrow:

  2. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  3. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  4. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  5. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied