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Online Postings Give Opposing Counsel Edge
Access to Damaging Personal Info
Today, it is standard practice for attorneys to do an Internet search on any adverse party and witness, according to Robert D. Kreisman, a medical malpractice attorney with Kreisman Law Offices in Chicago.
In medical negligence cases, these searches typically return basic information, such as a physician's medical training, a hospital or clinic's address and phone number, or the medical specialties of a physician or a nurse, says Kreisman.
However, says Kreisman, with the advent of social media websites, opposing counsel could find out much more personal information about an adverse party or witness.
"For example, Twitter could provide information on what the party was doing on or leading up to the date of the incident," says Kreisman.
If a physician uses Facebook or LinkedIn to discuss medical issues with his or her peers, Kreisman says it is possible that the opposing counsel could discover conversations or comments about issues raised in the case.
"These social media sites could provide opposing counsel with an insight into a witness's thought process, psyche, and personality, even before encountering the witness," says Kreisman. "This access would give counsel an edge in both discovery and at trial."
Is It Admissible?
There is no question that an EP's online posts are all discoverable, says Michael Blaivas, MD, RDMS, professor of emergency medicine in the Department of Emergency Medicine at Northside Hospital Forsyth in Cumming, GA.
"I have seen things make it into depositions and testimony already," he says. "In fact, unlike previous lawsuits which can be kept off the record in some states, there is no protection from an editorial on your Facebook page blasting a patient for being stupid, drug-seeking, or some other thing."
In order for social media posts to be admissible at trial, however, there needs to be a connection with the issues in the lawsuit, says William Sullivan, DO, JD, FACEP, director of emergency services at St. Margaret's Hospital in Spring Valley, IL, and a Frankfort, IL-based attorney.
"This is a question of law to be decided by the judge," says Sullivan. "The jury will never hear about the social networking activity if the judge decides there is no nexus."
a. more and more physicians and medical professionals become involved in social media websites, whether Twitter, Facebook, or LinkedIn, questions of whether information posted on these sites can be admissible at trial "have become much more relevant," according to Kreisman.
Case Law in Flux
The question is whether opposing counsel should be allowed to access and use information obtained via social media for purposes of cross-examination and impeachment at trial, says Kreisman. Kreisman notes that the New York State Bar Association recently allowed that information gained through social media websites may be used to impeach a witness at trial.1
"This information can only be used if it is available to the public," notes Kreisman. "Therefore, if the opposing counsel obtained the information by 'friending' the witness or directing another party to do so, then that information would not be admissible in a New York courtroom."
Likewise, a Philadelphia bar association has commented on the admissibility of information obtained from private social media sites, such as Facebook or LinkedIn, that require "friending" to see a user's complete profile, says Kreisman.
The association mandated that attorneys cannot ask a third party, whom the witness would not recognize as being connected with the lawsuit, to "friend" an adverse witness in order to obtain evidence, he reports.
"But the bar association did state that an attorney could use his or her real name to 'friend' the witness, and attempt to obtain the information openly and honestly," he says. "Attorneys can subpoena this information during the discovery portion of the lawsuit."
Kreisman also points to an Indiana court ruling that social media information is subject to the basic rules of discovery. The court rejected arguments that its production violated a party's privacy by stating that "a person's expectations and intent that her communication be maintained as private is not a legitimate basis for shielding those communications from discovery."2
Illinois operates under Supreme Court Rules 213 and 214 for discovery by written interrogatory and production of documents, notes Kreisman. "There is no specific rule on the subject of discovery of writings posted on a social media platform," he says. "But the case law would support production of these materials, regardless of their source, even from social networks."
This may be because the way people communicate, professionals included, has changed dramatically in recent years, says Kreisman. "In Illinois, the courts would insist that professionals reasonably expecting litigation to ensue should be aware that e-mails, blog posts, and social network writings are likely to be requested in discovery, and must be preserved or else face spoliation consequences," he adds.
Retrieving information from social media sites is not necessarily easy for a plaintiff's attorney to do, says Kreisman. He notes that sites such as Facebook and MySpace will produce information only with the user's consent or by court order.
a.though the Indiana court held that the production of social media information did not violate a party's privacy in Equal Employment Opportunity Commission v. Simply Storage Management., LLC, a California court held that Facebook and MySpace were prohibited from producing such information under the federal Stored Communications Act, notes Kreisman.3
"Subpoena power will, in many jurisdictions, trump opposition to this discovery," says Kreisman. "Furthermore, those who do post on a blog or on the 'wall' of a Facebook friend must be aware that these writings can be discoverable and used at a trial."
What is clear, says Kreisman, is that the law surrounding production of social media information is still in flux. The trend, he says, seems to be to permit its use at trial as long as the material meets the evidentiary requirements of relevancy and materiality.
"There are no magic guidelines for keeping information private," says Kreisman. "The best defense is to practice common sense and discretion, operating from the assumption that one day the information posted could be used at trial."
1. N.Y. State Bar Association. Ethics Opinion 843; Sept. 10. 2010.
2. Equal Employment Opportunity Commission v. Simply Storage Management. LLC, 2010 WL 3446105; S.D. Ind. May 11, 2010.
3. Crispin v. Christian Audigier Inc., 2010 WL 2293238; C.D. Cal. May 26, 2010.