Tag Archives: John Browning

Plaintiff Claims Physical Injuries Made Worse by Cold Weather, Then Goes Snow Skiing

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.

The Plaintiff objected to the request and ultimately a court motion was brought to resolve the discovery dispute. Initially, the trial court only directed that the injured plaintiff send defendants a copy of “every photo on Facebook” evidencing the injured plaintiff “participating in a sporting activity.” However, The Defendants appealed the order and the appellate court viewed the trial court’s order as too narrow, finding that defendants demonstrated that the injured Plaintiff’s profile contained an image that was “probative” of the issue as to the extent of her injuries, and finding in turn that “other portions of her Facebook profile may contain further evidence relevant to that issue.”

The appellate court ruled that defendant made “a showing that at least some of the discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on her claim.”

Regular readers of this blog will note that there is nothing new here as we have covered many similar recent cases with this type of fact pattern and outcome. But it is notable that such cases are becoming very routine. Also, it should be very clear by now that any law firm defending or prosecuting personal injury claims – as well as their hired eDiscovery consultants — should be investigating social media sites for sources evidence as a matter of course. As attorney John Browning pointed out earlier on this blog, any attorney who fails to do so may be violating their ethical duty of competence.

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Filed under Case Law, Social Media Investigations

Social Media Ethics Webinar with Lewis Brisbois

On Thursday March 1, I will be speaking along with social media expert lawyer John Browning of Lewis Brisbois, and Josh Rosenberg of LexisNexis in a complimentary webinar addressing ethics and social media evidence.  The webinar will address this fundamental question: As social media evidence is relevant to just about any type of civil or criminal case, and in an age where 65% of adult Americans have at least one social networking profile, how does this impact an lawyer’s ethical duty of competency if they fail to account for relevant evidence from social networking sites in their cases?

1 hour of Ethics CLE is approved in CA, IL, NY, AK, AZ and pending in many other States. You can register here.  We are very excited to be hosting this webinar with over 525 registrations already! I hope you can join us online.

UPDATE (from March 2):  The webinar recording  is now available for your viewing, however, CLE credit is not available for the recording at this time.

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Filed under Best Practices, Case Law, Legal Ethics & Social Media

The Affirmative Legal Duty to Address Social Media Evidence (Guest Attorney Blogger Edition)

John G. Browning

Today we are pleased to welcome a guest attorney blogger, John Browning who is a partner in the Dallas office of Lewis Brisbois Bisgaard & Smith LLP.  John is a frequent writer and speaker on issues related to social media and the law, and the author of the book The Lawyer’s Guide to Social Networking: Understanding Social Media’s Impact on the Law (West Publishing 2010):


John Patzakis’ December 12, 2011
, post on attorneys having an affirmative duty to address social media evidence was spot on.  The commentary by the Maryland appellate court in Griffin v. Maryland that lawyers “as a matter of professional competence” should be investigating social media avenues in their cases represents just the latest in a number of opinions from around the country that demonstrate that the lawyer who ignores online resources does so at his own peril.

For example, in a 2010 Missouri Supreme Court case, Johnson v. McCullough, the court appeared to impose an affirmative duty on attorneys to make online investigation a key part of their jury selection.  In the underlying medical malpractice case, plaintiff’s counsel asked the panel during voir dire about any previous history of lawsuits, and one venire member did not respond.  After a defense verdict, the plaintiff’s counsel investigated that juror’s civil litigation history online (using Missouri’s PACER-like service, Case.net), only to discover that the juror had been a defendant in several debt collection matters and a personal injury case. Plaintiff’s counsel moved for a mistrial; after it was granted, the defense appealed.  The Missouri Supreme Court not only upheld the defense verdict, it also added some pretty strong language about attorneys’ responsibilities “[i]n light of advances in technology allowing greater access to information.”  Saying that “it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention earlier on in a case, the court held that “a party must (emphasis added) use reasonable efforts to examine the litigation history on Case.net of those jurors selected but not empanelled and must present to the trial court any relevant information prior to trial.”

Courts in other states considering due diligence issues have recognized a “duty to Google,” if you will.  An Indiana appellate court in Munster v. Groce was incredulous that the plaintiff’s attorney had failed to Google the absent defendant Groce as a matter of due diligence, noting that the court itself had done so and immediately obtained search results that included a different address for Groce as well as an obituary for Groce’s mother listing numerous relatives who might have known his whereabouts.  And in Dubois ex rel. Butler, a Florida appellate court questioned the effectiveness of an attorney who had only checked directory assistance in order to get an address to serve a defendant, calling such a method in the age of the Internet the equivalent of “the horse and buggy and the eight track stereo.”  In a Louisiana case, Weatherly v. Optimum Asset Management, the appellate court upheld a trial judge’s rejection of a party’s due diligence claims where that judge had conducted his own Internet search and concluded that the proper contact information for the defendant was “reasonably ascertainable.”

Beyond this clear trend toward requiring greater digital savvy on the part of attorneys, ethical rules also mandate that a professionally responsible lawyer should not ignore social media.  Rule 1.1 of the ABA Model Rules requires lawyers to be competent in representation of their clients, with Comment 6 advising that lawyers “should keep abreast of changes in the law and its practice.”  In an age in which Facebook has amassed 800 million users worldwide and studies show that 65% of adult Americans have at least one social networking profile, how competent or diligent is the lawyer who fails to take information from social networking sites into account?

John Browning may be contacted at jbrowning@lbbslaw.com.

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Filed under Case Law, Legal Ethics & Social Media