The explosion of social media usage on websites such as Facebook, Twitter, MySpace, and Youtube, has resulted in new ways of acquiring information about people. Law firms, whether they are prosecuting or defending, can use information gleaned from social media websites to aid them in their cases.
According to Comscore, Inc, as of June 2007, there were over 200 million visitors to social network sites. For a personal injury attorney, there is a very good chance that your client participates in some form of social networking whether it is in the form of blogs, vlogs, internet forums, social blogs, bookmarking, or podcasts, to name a few.
Today, an attorney representing an injured plaintiff must be aware of the wide spread use of social media not only because it can lead to damaging evidence against his/her client, but also can facilitate in gathering evidence against the opposing side. Personal injury attorneys already know that insurers and defendant companies can and will hire investigators to do surveillance on the plaintiff in the hopes of catching him or her doing something that will be damaging to the case. With the use of a computer, the defense can now save thousands of dollars normally spent on hours of surveillance by investigating the plaintiff’s activities on social media websites.
Consequently, an attorney should instruct their client and the client’s family members to take down their social accounts and refrain from using any social media websites for the duration of the litigation process. While this may seem like an outlandish request to a person who spends considerable time on these social websites, an attorney must convey the importance of “social media abstinence.” Defendant companies will examine the activities of the plaintiff, his or her immediate family, and even friends' activities on these social networking websites. The defense or insurance investigators will be able to take information that is posted and use it in court. What may seem like innocent postings to the plaintiff may be manipulated in court to become potentially damaging evidence. Even if the defense finds nothing substantial with the plaintiff’s social networking postings, they may convince the court that the mere fact the plaintiff spends time posting on these websites means that he/she is capable and healthy enough to work on a computer. Since working on a computer qualifies as legitimate light to sedentary work, you don’t want your client to weaken his/her case.
One of the first things an attorney should do when retained by a client is to thoroughly review the plaintiff 's social profile and posts that were made prior to the accident. Any damaging posts should be removed. However, duplicates should be made of all deleted posts in case there is a request to see them later by the court or the defense or insurance investigators.
Once an attorney is confident that his/ her client has no potentially damaging information posted to any social networking websites, they can then propound discovery to the defendant. Likewise, the plaintiff will also be asked by the defendant lawyers to produce documentation or information including social media posts.
To aid in the plaintiff's case, you, the attorney, should thoroughly search social networking websites to find accounts and content posted by the defendant- before you send discovery to the defendant. In your initial search of the defendants social network accounts, content should be preserved. Posts and articles should be printed with the web address showing in the document and videos and podcasts should be downloaded since the defendant’s lawyers may take down all their posts, videos, and articles once discovery is propounded.
In addition to reviewing the social media presence of the defendant, the defense's expert witness' social networking posts should also be thoroughly reviewed for the purpose of the cross examination. It is very likely that an expert witness will have social networking accounts because they are a great marketing tool that will not only explain the business, but also bring traffic into their websites. Therefore in the discovery, you should request the same type of information of the expert witnesses as you do for the defendant. In addition you should request any information that the defense may have on the plaintiff's expert witnesses and information the defense has found on the plaintiff.
Another challenge presented by the use of social media postings in court cases is proving that the social media evidence was in fact posted by the defendant and therefore authentic. In many social networking websites a user has a username that can be anything he or she chooses. The defendant can easily deny that they are the one posting under a certain username on a site where the evidence was found. In that case, records of who the user is must be obtained by court order. The ruling in Independent Newspapers, Inc v Brodie is what many courts follow today to justify attaining the user’s real name.
Don’t be left behind the “social media curve” as it relates to personal injury cases.
For more information go to this article written by Steve Gordon.
Experts' Reports & Communications to and From Counsel are now Protected Work Product
Under the version of Federal Rule of Civil Procedure 26, up to November 30, 2010, any and all draft reports made by experts as well as any and all communications by counsel to an expert were required to be produced to the opposing side. Obviously this Rule 26 was problematic in that it is rarely the case that an experts' first report was "perfect" and the counsel for whom it was prepared had to provide guidance as to what needed to be addressed or re-stated in a more precise manner. Those type discussions provided great "fuel for fodder" in cross-examination in attempting to show that the lawyer and not the expert actually worded the report. This often times would work and, even if it was not totally successful, it drew attention away from the main conclusions of the expert and, sometimes, placed the expert on the "uncredible" category.
This all comes to and end on December 1, 2010. The new FRCP 26 no longer requires full discovery of draft expert reports that have been specifically retained as an expert or communications from counsel as these type communications will be considered Attorney Work Product and privileged. The new rule will prohibit discovery of draft expert reports and limit discovery of attorney-expert communications. Of course, the opposition will still be able to obtain the retained expert's final opinions as well as all of the underlying facts and dat utilized to support those opinions.
The history of this important change started with the U.S. Judicial Conference in September 2009 and the United States Supreme Court approval and adoption of this change in April, 2010. Thus, if Congress takes no action to reject, modify or defer the proposed rule, it takes effect on Dec. 1. At the time of this writing, the lame duck congress of 2010 is far to disjointed to even agree on a recess let alone bring up this issue.
Draft Expert Reports Protected as Work Product - Retained Experts
The rule expressly provides that the work-product privilege will apply to "protect drafts of any report or disclosure required under Rule 26(a), regardless of the form in which the draft is recorded." It is important to note that this new Rule 26 applies to retained experts, i.e., experts that have been hired to render an opinion and, without such hiring, would not have otherwise been involved in the case. Non-Retained experts are discussed below.
Counsel - Attorney Communications to Experts Protected as Work Product
Under the new FRCP 26, communications between retained experts and the counsel who retain them are now also considered work product. However, the new 26 provides three important exceptions. They are:
- Communications pertaining to the expert's compensation;
- Facts or data that the attorney provided and the expert considered in forming his or her opinions; and
- Any (i) assumptions that the attorney provided to the expert AND (ii) which the preferred expert relied upon in reaching his or her conclusions and opinions.
The New FRCP 26 Changes Discoverability of Non-Retained Experts
After December 1, 2010, the trial attorney must submit a "Disclosure" as to witnesses that will be providing expert testimony. For example, a treating physician in a personal injury case is really a fact witness but, because of their training, education and special expertise, it is anticipated that when they are deposed or brought to trial that they will render opinions that would fall within Rule 702 of the Federal Rules of Evidence. Therefore, under the new rule 26 in the Federal Rules of Civil Procedureimony., the trial lawyer must now provide a timely disclosure summarizing the facts and opinions to which the expert is expected to testify.
Broad Support from the Bar
Organizations that endorsed the new revisions are representative from all sides of the bar. They include the American Association for Justice - AAJ, Defense Research Institute - DRI , Federal Magistrate Judges’ Association, American Bar Association - ABA, American College of Trial Lawyers, Lawyers for Civil Justice, Federation of Defense & Corporate Counsel, International Association of Defense Counsel and the U.S. Department of Justice. One of the perceived benfits of the FRCP 26 rule change is to save on litigation costs, "The proposed amendments provide protection to attorney-expert communications that allows the attorney and the expert to communicate freely with each other without having to engage in time-consuming and wasteful measures to avoid the creation of a draft report," said John H. Martin, a past-president of DRI.