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Wednesday, February 20th, 2013
The attorney in me wonders whether Facebook is really just a big lie detector – a site where people undermine their lawsuit claims with stupid and embarrassing posts.
Consider this whopper: In a recent, federal sexual harassment case in Colorado, the plaintiff claimed she was called a certain bad name – a four-letter, derogatory, slang term for the female reproductive anatomy. But she also posted on her Facebook page a picture of herself wearing a t-shirt with that same word emblazoned on the front in large letters. Oops!
Or this one: A Virginia man sued claiming anguish when his wife was killed in a highway accident. Sadly, he and his wife were in the car together when they were hit by the defendant’s concrete truck.
The man undercut his case when he later posted on his Facebook page a picture of himself (when he supposedly was in mourning) holding a beer and wearing a t-shirt saying “I [heart] hot moms.”
And he undercut his case further because for some reason he sent a Facebook message to the attorney for the defendant. Somehow this Facebook message enabled that defense attorney to see the unhelpful picture. That lead to finding more bad things on the defendant’s Facebook page through discovery.
And the plaintiff’s attorney hurt himself when he found out about the unhelpful Facebook picture and sent instructions for the man to “clean-up” his Facebook page because “we don’t want any blow-ups of this stuff at trial.”
The widowed man then took down that unhelpful picture from Facebook and some other bad stuff, to try to hide it and to avoid giving it to the defense legal team.
That’s intentional destruction of evidence. As a result, while the man won a big judgment for the loss of his wife, he was fined $180,000 for destroying evidence.
And his attorney was sanctioned $542,000 for appearing to order the destruction of that evidence. That attorney also had to resign his partnership in a highly profitable personal injury law firm.
See any social media mistakes here? There are some lessons to learn:
First, whatever you post on Facebook (or on any social media site, or send in email) can be used against you in a lawsuit. It does not matter whether you make the post private – only for your friends, for example. That does not shield it from being obtained by the other side in a lawsuit and used against you.
Indeed, once a court determines that your private Facebook postings and messages are likely to contain relevant evidence, either the judge or opposing lawyers will be fishing through your Facebook activity and using the bad stuff against you. The same applies for email.
Another lesson is that, once litigation becomes reasonably foreseeable (and certainly after it starts) you cannot destroy relevant evidence.
That means you can’t go delete those unhelpful emails or wipe out those unhelpful Facebook posts and pictures. Indeed, you have to make certain you turn off any features that would automatically delete such material.
It would be better to prevent the problem from arising. Use discretion about what you post on social media or write in email. It’s hard to know when you’re on the cusp of something that might lead to a lawsuit, such as health incident, a car wreck, getting fired, getting hurt on the job, a divorce and child custody battle, or a commercial dispute.
Whatever you post could undermine your case. Keep the same advise you give your kids – don’t post or email anything you would not want in the newspaper.
Indeed, I know of at least one local personal injury law firm that instructs its clients in writing to stop using social media entirely during the duration of their cases.
And one last thing. Certainly don’t send a Facebook message, or any other communication, to the lawyer for the other side. Leave that communication to your lawyer.
I don’t know what that man was thinking when he sent that Facebook message, but it pulled a thread on the proverbial sweater that ended up costing him $180,000 and could have destroyed his case entirely.
Written on February 20, 2013
by John B. Farmer
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