I’ve never taken a selfie, I don’t tweet, and I really don’t know much about yik yak or Pinterest. But with a few searches, I can learn a whole lot about you—where you live, work, attended school, how much you paid for your home, and what’s your favorite movie. Most likely, I can watch a video of you slurring the words to “Livin’ on a Prayer” at some karaoke bar, and can easily track how much you donated to worthless politicians. And if I was really tech savvy, I’d probably know how you like your coffee, and whether it was really a flat tire that caused you to be late three weeks ago.
Nothing is secret anymore. I’m sure I’m filmed by hundreds of cameras each day as I walk the streets and drive the avenues of Brooklyn. They’re on buildings, in stores, on lamp posts, street lights. Heck, one home down the street must have a half dozen covering every window and door. Jay Z can’t even get slapped around in an elevator without everyone knowing. If you wish to remain anonymous, toss your iPhone into the Gowanus Canal and stop sending texts or emails. You realize, don’t you, that the internet is forever. Whatever is emailed, posted can always be retrieved and will be used if you’re ever involved in a lawsuit.
Used to be when you represented a plaintiff in personal injury or wrongful death litigation, defense counsel would request authorizations for educational, employment, medical records. Mostly bland, emotionless facts. Now they want to read your Facebook page, your Twitter account, and view every photo or video posted on Instagram. These reveal your thoughts, personality and philosophies—what you like, who you voted for, who you hang with, where you vacationed. No longer will discovery simply show that on April 2nd, your right arm and shoulder were x-rayed. Now the defense may be able to determine if you were in pain, and whether your injury prevented you from normal activities as you claimed in your deposition.
For example: If someone posts a pix of you smiling at a party and you comment: “Had a great time, thanks.” Be forewarned that this will be a topic at your deposition.
“Previously, Mr. Nolan, you testified that your injury has made you depressed, that you really can’t enjoy yourself, enjoy life like you once did. Is that correct?
I show you this photo taken from your Facebook page….You look happy, don’t you?…Is that a wine glass in your hand?…This was a birthday party?…You had fun, didn’t you?….wrote that you had a great time, didn’t you?…And this was on June 11th, less than six months after your accident?…You didn’t write that you were depressed, did you?…that you were in pain, did you?…that you were unable to enjoy yourself, did you?…Now I show you another photo from your Facebook page…
Every posting has potential to influence the lawsuit. If you rant about Obamacare, or the NBA and Donald Sterling, this information may be used. And if by chance you go overboard and post a photo or statement that could be interpreted as racist, homophobic, etc., an ingenious attorney will certainly exploit this transgression.
So once retained, sit down with your client and examine what exists on social media. Bring a young lawyer or one of your teenagers to show you the latest sites, trends. Be thorough. Read every tweet, watch every video, no matter how old. Be prepared–for your adversary will, undoubtedly, obtain this material. The internet has not only changed how we live and communicate, but how we litigate.
Kenneth P. Nolan, Counsel to Speiser, Krause, Nolan & Granito, is the author of A Streetwise Guide to Litigation (American Bar Association 2013).