Social media has grown to the extent that about half of the people of the United States use Facebook, LinkedIn and Twitter. 85% of young lawyers use social media.
Just as fast as the use of social media has occurred, so has the case law. In New York, until a recent court case, all courts allowed discovery of both public and private information on social media. The recent case McCann v. Harleysville Insurance Company of New York, a 4th Department case where the trial court denied the defendant’s request for photos from the injured parties Facebook without further relevancy of the photos. This case is not the final say that comes from the Court of Appeals. All other Courts in New York allow discovery of social media.
Trial preparation for all lawyers now requires research on social media for both the injured party and potential witness that may testify in the trial. On the first meeting with the injured client, the attorney must advise their client about how social media can be used against them.
In my personal experience, clients are not aware of the dangers of posting on the social media and the effect it will have on their case. However, what this all boils down to is that all attorneys will be able to use the information on social media to impeach a witness. They may also show photos of the injured party after the date of their accident doing physical acts, or show posts about the client talking about how wonderful their life is when the litigation is going on. An injured party will be judged by a jury even in the most innocent photos showing them smiling and having a good time a party. The admission by a witness or a party to the litigation found on social media is allowed as a party’s admission and not excluded by hearsay rules. Social media can be used to impeach a witness (show that they contradict their claims by what the post on social media).
In the personal injury litigation field, an injured party can destroy their case by what they post on their social media (comment about how much money they are expecting or defame a lawyer) while the case proceeds in Court. Westchester County juries are very conservative. All they have to be told or shown is an injured party doing something or posting something in bad taste and their case is sunk, even if the photos have nothing to do with the case or injuries. Jurors are judgmental and before a post is made by the injured party they must be aware that they are being judged by a jury.
Not only does an injured party have to worry about their current posts on social media, but also comments or photos they posted in the past which can come back to haunt them.
In Supreme Court, Suffolk County, Romano v Steelcare, Inc. , 30 Misc. 426 (Supreme Court, Suffolk County 2010) the Court ordered that defendant can compel discovery of not only current and historical Facebook content but also pages that had been deleted by the user. All that the defendant has to allege is that the deleted material was “material and necessary”. The Court held that “any fact bearing on the contrary which will assist preparation for trial by sharpening issues” will be reproduced.
In conclusion, all clients must be told whatever is posted on social media past or present, can and will be seen by juries who are sitting on their case.
If you should have any questions, or require legal representation, please contact the Law Office of Dominick J. Robustelli & Associates, PLLC for a free consultation. You can reach us at (914) 288-0800.