Social media sites like Facebook and Twitter have more frequently used by Judges and parties and are highly sought after in litigation as sources of discovery information, containing as they do all kinds of useful information which can advance and damage a party’s legal case.
Judges have been starting to view parties’ Facebook profiles ( Is a Judge Checking Out Your Facebook Profile), Lawyers have been combing social media websites in family law cases to dig up any kinds of photos, commentary or status updates they believe will advance their clients’ cases by portraying their adversary in a damaging light. (Facebook Photo Privacy Case and Tagging). This can be particularly dangerous where practises occur on the internet which may lead to parties being misrepresented, for example where photos are photoshopped in an unflattering maner to a party involved in court proceedings or photos scraped from an internet dating site to use in divorce proceedings. (Facebook photos Stolen For Internet Dating Site). (Facebook has been used to serve court documents online (Facebook used to serve Court documents online).
We have to trust that Attornies, parties and Courts are alive to the dangers of relying on information, the authenticity and reliability of which may be suspect or where information may be taken out of context. There is also an assumption that Attornies and Courts are aware of the practices which can occur on social networking sites which may result in an injustice to a party whose interests are misrepresented. People have been known to splatter their spleens throughout cyberspace in a manner which may not be looked upon favourably by a court of law.
The reality is that Judges will have to come to terms with new media in the court system as it is now apparent that US Attornies use social media sites prolifically in litigation of various kinds ranging from family law to personal injury claims.
In fact many US rules of Civil Procedure impose duties on Attornies to preserve potentially relevant information within their possession or control in reasonable anticipation of litigation.
Clients will often decide to co-operate with their Attornies by enabling them to comply with their discovery duties, surrendering access to their Facebook accounts and enabling users to download their Facebook information.
By using the download and archive features of Facebook, all of a client’s Facebook data will be generated and available within a few hours (contingent on the amount of data), in the form of a zip file download of the Facebook user’s profile. This feature has proven to have a use beyond which it was originally intended, namely to migrate a user’s content to an alternative social media site.
A Facebook download file contains information such as relatives and groups the user has joined, their wall including anyone who posted on their wall, photos collated by event, date and sometimes GPS locations if they are ascertainable. It also contains a complete listing of the Facebook user’s friends and the date, time, to, from and message body of all messages.
The case of Yogesh Patel v Havana Bar Restaurant and Catering highlights the importance of treating Facebook discovery processes in the same way as one would conduct discovery of other types of evidence. It also illustrates the dangers associated with using Facebook as a tool for gathering evidence and the risks that adverse consequences could flow if not used with care. In Patel’s case the Judge found that the Plaintiff had abused civil discovery processes as a result of the manner in which Facebook had been used as a tool for discovery in a personal injury case.
If a party intends to solicit evidence, either alone, or in collaboration with their Attornies through Facebook, care must be taken to adhere to the processes of discovery and to refrain from unwittinginly engaging in what might be considered by a court to constitute unethical conduct which frustrates judicial discovery processes.
If you initiate discovery requests for the purpose of a legal case through Facebook, eg to collect witness statements in support of your case, you must not conceal or selectively produce evidence.
Don’t be lulled into a false sense of security that Facebook is ‘different’ or believe that your activities will remain either undiscovered or viewed in a dim light when scrutinized by a Court. Abuse or violation of discovery procedures could lead to a number of potentially damaging outcomes and a Court of law has the discretion to impose a number of sanctions where it deems appropriate.
If you are discovered being naughty during your Facebook discovery efforts to elicit evidence for your case, the conduct could even be deemed by a court to be serious enough to warrant dismissal of an otherwise meritorious case. It is open to an opposing party to bring a summary motion asking the court to dismiss your case before it is heard for violation of discovery procedures. The same kinds of rules apply in the online and offline environment when it comes to discovery violations in relation to evidence sought, gathered and exchanged in court cases.
If you are seen as having engaged in unethical practices you could attract the approbation of a Court, or the Court might decide to draw adverse inferencesin relation to evidence you have gathered through Facebook but decided to selectively disclosed.
If you fail to comply with your affirmative duty to produce all evidence, subject to narrowly defined exceptions, you could face significant costs orders payable to the other side for the violations, fines and dismissal of your claim.
A Philadelphia Court in the Patel case demonstrates that concealment by a party and/or their Attorney of evidence, including messages and responses elicited through Facebook, can be visited with sanctions for violation of discovery rules.
In the Patel case, the Plaintiff had brought a lawsuit against a Bar in Havana alleging negligence, seeking damages for personal injuries allegedly sustained from falling from a fall from a second storey balcony in 2007 at the premises. It wasn’t disputed that the Plaintiff had suffered severe injuries as a result of the incident.
His negligence action appeared to be based on a variety of claims, including that the defendant failed to properly maintain the premises and supervise the Plaintiff, and further to warn him of hazardous conditions and rectify those conditions.
There was a possibility, acknowledged by the court that there was a third count of negligence he was alleging, namely that his fall was attributable to Bar staff continuing to serve him alcohol knowing he was intoxicated.
However the Facebook requests initiated by his sister-in-law, considered in the context of the case, tended to lend credence to the Defendant’s contention in Court, that the Plaintiff had decided to base his negligence claims only on the first two counts. The Court seemed to be open to the view that the claim relating to the reckless serving of alcohol was a divergent theory upon which to base a liability claim in negligence.
A Police report of the incident, which the Plaintiff had in his possession, stated that the Plaintiff was drunk at the time of falling from the balcony.
In 2008 there was an effort by the Plaintiff’s sister-in-law to refute or cast doubts upon the accuracy of the contents of this Police Report, which could have damaged the Plaintiff’s prospects of recovering damages.
There is a lesson to be learnt from the sister-in-law’s detective work conducted through Facebook which she was gathering in anticipation of legal proceedings. She sent through messages to users to help the Plaintiff prove his case.
If you are going to conduct these activities in anticipation of legal proceedings, you should do so under guidance of a qualified Attorney familiar with discovery rules and procedure, as you must ensure that you comply with civil rules of procedure in the jurisdiction where you reside and fully preserve and produce such evidence where obtained. This includes evidence you elicit which both advances and damages a legal case.
The Plaintiff’s sister-in-law ambitiously embarked upon a Facebook discovery expedition, sending Facebook messages to guests present at the time of the incident, asking them to prepare a statement offering their recollection of the incident that night, the main focus of which was on describing the Plaintiff’s condition at the time with reference to whether he was intoxicated.
In fairness to the Plaintiff’s sister-in-law she framed her request in a way which didn’t ask anyone to lie or give false accounts (examining the message in context reproduced in full in the Judgement)
She constructed the messages herself, using her own language, however the Defendants suggested that they were manipulative and self-serving, in the manner in which they attempted to influence the witnesses’ recollection, in a way which fitted the Plaintiff’s case theory at the time.
After the passage of two years from that initial attempt to gather evidence, Lawyers for the Plaintiff appeared to modify their legal strategy in the way they approached their accusations of negligence.
The Plaintiff Lawyers began to allege that the Plaintiff had fallen from the balcony as a result of being drunk, and that the injury occurred as a result of the recklessness of the defendant, in that their Bartender continued to serve the Plaintiff alcohol despite him being visibly drunk.
The second message transmitted by the Plaintiff’s sister in law to potential witnesses included the following phrase:
“All statements that accuse him of jumping will not be included in this collection of statements because that claim is edging on the side of being outlandish so if that’s what you think happened please don’t send your statements along…At this point there’s about 5 statements collected by the police that night that claim Yog jumped and the lawyer stressed the importance of us collecting at least 10-12 statements from our friends that say he DID NOT jump, but he FELL OVER the railing …”If you still have the statements that you emailed to me almost a year or two ago please edit according to the new direction we’re going in and re-send those if you can.”
During the initial discovery phase of the case, the Plaintiff’s Lawyers didn’t provide the Police statements to the defendant within the time frame required, and the evidence that they did release suppressed the existence of the earlier Facebook messages.
The Plaintiff’s sister-in-law may not have expected this evidence to ever surface, however it came to the defendant Lawyers’ notice at the time during the course of the defendant’s independent interviews of persons present at the Bar. The Defendant discovered the existence of the Plaintiff’s Facebook requests and the Facebook witness responses when obtaining their own witness depositions.
The court intervened at the defendant Lawyer’s request, ordering the Plaintiff’s lawyers to hand over all witness statements in their possession, however the Plaintiff’s legal team responded by turning over only some of the witness statements sought, omitting the earlier statements elicited from the sister-in-law’s first request. This was the request to Facebook guests seeking to collect their evidence which would have demonstrated that the Plaintiff wasn’t intoxicated at the time he allegedly ‘fell’ off the balcony.
Despite some discrepancies in their evidence, the Plaintiff, his sister in law who sent the Facebook requests for evidence to users, and his legal counsel testified that the witness statements couldn’t be located. The Plaintiff’s sister in law said she didn’t have copies of the responses she received, but had given hard copies to the previous Attorney conducting the claim.
The Plaintiff’s legal team attracted the court’s condemnation when it was also discovered that they had only handed over part of the Police file relating to the incident belatedly, and then conspicuously omitted critical evidence which controverted the Plaintiff’s version that he fell rather than jumped off the balcony.
The Plaintiff risked having his case dismissed based on the violation of discovery procedures, however the Judge was prepared to allow the case to proceed, and was prepared to allow adverse inferences to be drawn from inability to locate the witness statements received by the Plaintiff’s sister in law.
The Defendants’ arguments were convincing enough for the Judge to raise an inference that the Plaintiff’s decision not to preserve the witness statements was due to the belief their contents would be adverse to the Plaintiff’s case.
The Plaintiff also defended their decision not to produce the statements, contending that they were provided by non-party individuals through Facebook, and were covered by Attorney-client privilege. However the Court disagreed that this material could extend to non-parties to the action. The Plaintiff also attempted, albeit unsuccessfully, to excuse the non-production of the witness statements based on what is called the “work product doctrine” and further rejected the argument that the statements had the status of hearsay and were thus inadmissible.
The Court dismissed this argument stating that the statements were clearly discoverable because they represented eyewitness accounts of the events in question. In relation to the argument raised based on the work product privilege claim, the Court remarked that the Defendants surely could establish substantial need and undue hardship to overcome that species of privilege.
Case law supports the view that work product generated materials can be discoverable where the other party in litigation demonstrates a need for the output to prepare it’s case and can’t do so without suffering undue hardship as a result of being unable to access equivalent materials. Such a claim, properly made, should also ordinarily be followed by a timely notification to the other party accompanied by a statement containing reference to documents the party claims privilege over.
The Plaintiff was also ordered to pay costs of $20,000 to the defendant Lawyers for frustrating the discovery process by withholding the documents from the other party.
The Defendants themselves were not blameless in their discovery of evidence, coming under scrutiny from the Court for their destruction of the video surveillance of the incident.
The conduct of both the Defendants and Plaintiff were raised in motions for cross-sanctions brought by both parties for what is known as “spoilation of evidence”. Case law defines this as the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.
The Plaintiff argued that if the defendant didn’t erase the video footage of the incident, it wouldn’t have had to embark on the evidence gathering process it did to prove it’s case, as by itself, the video surveillance adequately proved his claims.
The Court agreed that the defendant’s failure to preserve the video evidence, including their failure to take reasonable measures to preserve it by copying it to another format prior to the three week automatic erasure period constituted spoilation of evidence. The court did not feel it was appropriate to impose sanctions upon the Defendant, however was prepared to issue an adverse inference instruction or “spoilation inference” in relation to the destruction of the surveillance footage.
In Australia and other jurisdictions such an evidentiary inference is known as a Jones v Dunkel inference or direction.
Before the advent of the internet and the proliferation of social media sites gathering evidence for trials was the exclusive province of private detectives. The efficiency of the internet and particularly social media sites such as Facebook as a means of gathering and exchanging information may make it seem like an attractive and inexpensive way of preparing for a legal case.
However, as the above case demonstrates, there are legal minefields where a litigant or a person associated with a litigant attempts to use the internet as a means of collecting evidence, which could seriously backfire, particularly in a court environment which requires the expertise of qualified Attornies who are familiar with the detailed rules of evidence and procedure.
- I Can’t Face Being Your Facebook Friend – Piccolo v Paterson
- E-Discovery, Management & Exchange of Electronically Stored Information in Litigation
- Facebook Photo Privacy Case And Tagging
- Facebook Launch Location Features – A Time And A Place For Facebook Places
- Facebook used to serve court documents