Over three months ago my boss sent me an urgent email. He needed an article for a newsletter “right away, as in today”. I hate pressure as much as the next guy, so I was really annoyed (toned down language in case my mother reads this). However, I struggled to put something of quality together. As of yet, there has been no newsletter published and this article is growing older by the minute. Rather than let it die, I’m going to post it here.
Facebook and the Law
We all love facebook, right? We use it to keep in touch with family and friends. We post our statuses share our pictures, jokes and links. We chat and check in at our favorite locations. It’s great fun. However, our facebook profiles say a lot about us. How many of us think about how our information can be used by third parties? How much of our privacy are we risking by using facebook and other social networking sites?
Facebook is clearly a public forum, therefore all information published on the site is available to the general public and can be legally used in criminal or other investigations. This is obvious in a situation where a person claiming a permanent disability under worker’s compensation statute posts status updates and photos on his arduous Trek Across Maine ride. After the June 15, 2011 “Vancouver Riot” which broke out after our Bruins beat the Canucks in Game 7 of the Stanley Cup finals, police were overwhelmed with thousands of email tips with links to facebook and other social media postings. Many of these have been used in the investigation and presumably will be introduced as evidence in subsequent prosecutions.
So, it’s a given that the police can and will use facebook, but what about the implications in civil cases particularly in the discovery process? Modern discovery rules are very broad allowing for discovery of just about anything that may lead to admissible evidence. In Offenback v. L.M. Bowman, Inc., 2011 U.S. Dist. LEXIS 66432 (M.D. Pa. June 22, 2011) the plaintiff sued the defendants for personal injuries resulting from an automobile accident. The damages complained of included inability to work and limited “ability to sit, walk, stand, ride in a vehicle, bend, stoop, push, pull, and lift. He claimed that he could not drive for any period of time and [was] physically limited as to riding his bicycle or motorcycle.” The defendant’s attorneys requested discovery of his facebook account. His attorneys claimed the information was not relevant.
During an in camera review here’s what the judge found the plaintiff’s facebook account revealed:
• Plaintiff has posted a number of photographs or updates that reflect he continues to ride motorcycles and may have on more than one occasion traveled via motorcycle between his home in Kentucky and Pennsylvania. In particular, our review found a photograph posted on March 14, 2011, which appears to show Plaintiff with a Harley Davidson motorcycle that other posts suggest that he purchased in or around July 2010.
• On or about October 1, 2010, Plaintiff posted information to his account that suggests he may have traveled to West Virginia via motorcycle.
• On July 22, 2010, a post on Plaintiff's "Profile" page suggests that he had taken, or was planning to take, a trip to Pennsylvania on his motorcycle.
• On October 29, 2010, a photograph was posted to his account that may show Plaintiff hunting and in possession of a 10-point buck that he or another hunter had shot and killed.
• On August 29, 2010, Plaintiff's "Profile" contains an update in which he posts photographs and comments suggesting that he may have recently ridden a mule.
• On July 7, 2010, Plaintiff posted pictures of a Harley Davidson motorcycle that it appears he may have purchased shortly before the pictures were posted.
• On July 1, 2010, Plaintiff included "motorcycles" among his interests that he posted to his Facebook profile.
• Between March 16, 2010, and March 18, 2010, friends or relatives of Plaintiff posted comments to his profile that suggest Plaintiff had traveled from Kentucky to Pennsylvania, either by motorcycle or automobile.
It should be no surprise that the plaintiff was ordered to provide that facebook data to the defendants although the judge did add that other information, specifically “routine communications with family and friends, an interest in bluegrass and country music, a photography hobby, sporadic observations about current events, and a passion for the Philadelphia Phillies”, was not relevant.
