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Involved in Litigation? Be Careful What You Post Online

Posted in Cyberspace Law, Privacy, Web/Tech

By Nathan Geronimo

People are better connected with friends and family than ever before.  Social media sites such as Facebook and Twitter can be an excellent way to stay in touch with loved ones, and to get daily updates of people’s lives.  Similarly, through sites such as YouTube, people are able to share videos and information with others almost instantaneously.  While these sites can be great to disseminate images and information to a desired audience, they can also make information readily available to audiences that are less desirable to, and not contemplated by the poster.  There has been a great deal of buzz in recent years about employers using social media sites to perform “background checks” on prospective employees, and warning job applicants to be conscious of this fact when posting on social media sites.  In addition to this concern, recent cases illustrate a possible new concern for social media posters: use of social media posts in litigation.

In a recent decision in Louisiana, Boudwin v. General Ins. Co., Plaintiffs sued an individual and an insurance company based on alleged injuries arising out of a car accident.  In the lower Court, Plaintiff’s prevailed on the question of liability, but were unsatisfied with the jury awards of $25, 000 to the first Plaintiff, and $50,000 to the second Plaintiff.  On appeal, Plaintiffs argued that the jury erred in failing to award them any damages for physical disability or loss of enjoyment of life.  To recover based on a theory of detrimental lifestyle change, a court looks at both the severity of the injury, and Plaintiff’s lifestyle prior to the injury.

At trial, the first Plaintiff, a recent high school graduate, testified that prior to the accident, she studied all the time, but after the accident, she experienced pain when studying, and was unable to do sit-ups.  However, when questioned about her post-accident Facebook posts, she acknowledged that after the accident, she jogged regularly, and even participated in the “P90X” exercise program with a friend.

The second Plaintiff claimed at trial that before the accident, he played sports and stayed active, but since the accident had been less active due to experiencing a significant increase in pain after exercising or playing sports. On cross examination, however, Plaintiff acknowledged numerous Facebook posts where he posted that he was working out a lot, and playing basketball, softball, and tennis.  In one of the posts, Plaintiff reported playing in a softball tournament just two days prior to his final visit with the doctor who offered testimony on behalf of Plaintiff’s injury claims.

Based in part on Plaintiffs’ Facebook posts, the Court could not find that the jury was erroneous in refusing to award any physical disability or loss of enjoyment of life damages.  In essence, by forcing Plaintiffs to respond to their contrary assertions in Facebook posts, Defense counsel was able to successfully impeach Plaintiffs’ testimony regarding the extent of their injuries.

In another recent case, Ensign Yachts, Inc. v. Arrigoni, the jury returned a fraud verdict against third-party defendant James Ross and Plaintiff Ensign based on alleged misrepresentations regarding the sale of a yacht.  The dispute arose out of damages occurring during transport of the yacht, and whether a contract for sale of the yacht existed prior to transportation.  At trial, Ensign and Ross offered witnesses to testify that Ross had informed them that he had obtained a contract to sell the yacht.  Because of each witness’ connection to Ross, and the fact that their testimony was based on what Ross had represented to them, the credibility of their testimony was inherently linked to the jury’s perception of Ross’ credibility, which had been successfully impeached at trial.

In sworn testimony, Ross had testified that he had seen a third-party, Fabrice Fontanez on only one occasion since the negotiations regarding the subject yacht, and that he had no business relationship with him.  At trial, opposing counsel introduced a YouTube video of Ross and Fontanez on a yacht in St. Tropez.  The video was a promotional video for “NuMarine,” and was used to establish that Ross and Fontanez had a business relationship, and had seen each other on at least one other occasion after the yacht negotiations.  Because the video established that Ross had misrepresented the truth, at least with regard to these two matters, it was successfully used in impeaching Ross’ credibility. 

In both of these cases, social media posts were used to contradict seemingly dishonest assertions by the parties, and made significant impacts on the cases.  Whether the posting parties assumed their posts would not be discovered by interested attorneys, or whether they simply forgot, it is difficult to say.  The lesson to take way from these cases, however, is clear.  Social media posts are largely public information, and can be accessed by virtually anybody.  Social media sites have clearly found an indelible place in modern society, and are finding their way into litigation as well.