Recently our survey of published case law from 2010 and 2011 identified 689 cases involving social media evidence for that time period. While these results exceeded our expectations, that pace is actually rapidly accelerating in 2012. For this past April alone, a quick tally identifies 61 cases where social media evidence played a key role. We will have a mid-year report in a few months, but it appears that the volume of cases has about doubled year over year. Keep in mind that the survey group only involves published cases on Westlaw. With less than one percent of total cases resulting in published opinions, and considering this data set does not take into account internal or compliance investigations or non-filed criminal cases, we can safely assume that there were tens of thousands more legal matters involving social media evidence that were adjudicated or otherwise resolved in April 2012.
The following are brief synopses of three of the more notable social media cases from April:
Blandv. Roberts, 2012 WL 1428198 (E.D. VA, Apr. 24, 2012)
This case is notable in that it extensively litigated the implications of “liking” specific items on Facebook. In this situation the Hampton, Virginia Sheriff’s Office employed Bland and his co-workers, under Sheriff B.J. Roberts. Roberts faced a contested election and Bland and his cohorts backed the challenger Jim Adams, going so far as to “like” Adam’s Facebook page. As it turned out, the plaintiffs “liked” the wrong horse. Roberts won the election, and he subsequently fired Bland and the other Adams-backers. The Sheriff justified the terminations on cost-cutting grounds, but plaintiffs argued that their termination violated their First Amendment rights, as Roberts was aware that the plaintiffs’ “liked” Adam’s Facebook page, which plaintiff’s asserted to be protected speech. The court ultimately determined that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection and thus the termination was lawful.
From our perspective, the ultimate outcome of Bland v. Roberts is not so much the point as is plaintiffs’ subtle activity on Facebook representing substantive facts of the case. The act of liking a Facebook entry can be an important piece of evidence in a wide variety of litigation and investigation scenarios. Just to identify a few possible examples, it can constitute evidence toward a party’s knowledge of a particular fact, or the extent of trademark infringement or publication of defamatory material, or identify relevant witnesses in a case. This case illustrates why it is important to collect and preserve all available information on Facebook and other social media sites in a thorough manner with best-practices technology specifically designed for litigation purposes.
People v. Harris, 2012 WL 1381238 (N.Y. Crim. Ct. Apr. 20, 2012)
In this case, the defendant faced charges of disorderly conduct after marching onto the Brooklyn Bridge as a participant in the Occupy Wall Street protests. The New York District Attorney’s Office subpoenaed Twitter, Inc., seeking user information and Tweets from a particular time period for the Twitter account @destructuremal—the account allegedly used by the defendant. The defendant filed a motion to quash the subpoena.
In denying the defendant’s motion, the court relied heavily on the public nature of Twitter and its terms of service, which establish that users have no expectation of privacy and no proprietary interest in their Tweets. The court noted that the terms of service state that by submitting a post or displaying content, a user has granted Twitter “a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).” Thus, the court reasoned, “defendant’s inability to preclude Twitter’s use of his Tweets demonstrates a lack of proprietary interest” in them. In assessing the Plaintiff’s privacy rights, the court again relied on Twitter’s Terms of Service, which clearly inform users that their information will be viewable by others and which specifically state that “[w]hat you say on Twitter may be viewed all around the world instantly … [t]his license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”
Loporcaro v. City of New York and Perfetto Contracting Company, 35 Misc.3d 1209(A), (N.Y. Sup. Ct. Apr. 9, 2012)
This is yet another serious personal injury claim where the claimant’s public Facebook postings contradicted their assertions of serious injury. Plaintiff claimed permanent disability from two knee injuries while on the job as a firefighter, seeking redress against Perfetto Contracting Company, Inc., alleging defective road conditions caused his injury. However, his public Facebook postings suggested that he continued to maintain an active lifestyle. This prompted the court to grant the defense’s motion to compel production of the Plaintiff’s full Facebook account, ruling as follows:
“When a person creates a Facebook account, he or she may be found to have consented to the possibility that personal information might be shared with others, notwithstanding his or her privacy settings, as there is no guarantee that the pictures and information posted thereon, whether personal or not, will not be further broadcast and made available to other members of the public. Clearly, our present discovery statutes do not allow that the contents of such accounts should be treated differently from the rules applied to any other discovery material, and it is impossible to determine at this juncture whether any such disclosures may prove relevant to rebut plaintiffs’ claims regarding, e.g., the permanent effects of the subject injury. Since it appears that plaintiff has voluntarily posted at least some information about himself on Facebook which may contradict the claims made by him in the present action, he cannot claim that these postings are now somehow privileged or immune from discovery.”
Earlier this year we covered the case of Tompkins vs. Detroit Metropolitan Airport, which also highlighted the importance of systematic search of public Facebook as standard procedure for nearly every type of criminal and civil litigation investigation.
We will have an update in about four weeks for the social case law published in May, so stay tuned.
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Earlier this month a New York Appellate court ordered the complete disclosure of a personal injury Plaintiff’s Facebook account. In Richards v Hertz Corp., 2012 WL 5503841 —N.Y. Supp. 2d—, (NY AD 2d 2012, November 14, 2012) the Plaintiff claimed that her injuries from an automobile accident impaired her ability to participate in sporting activities and caused her to suffer pain that was exacerbated in cold weather. However, in the course of investigating the claim, the Defendant identified publically available images on the Plaintiff’s Facebook page “depicting [plaintiff] on skis in the snow,” (i.e. not only a sporting activity but in cold weather) and subsequently served a discovery demand requesting all her status reports, email, photos, and videos posted on her account since the date of the accident.
