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Social networking sites can sink cases, and attorneys MUST warn clients of the risk.

Consider the numbers:

Those figures will climb just during the time it takes to me to write this post. I haven’t even mentioned – yet – emerging sites such as Wikia, Zimbio, and Multiply.

With membership numbers like those above, and more online communities emerging, the Internet is about making connections, not keeping life confidential.

Personal injury attorneys need to ask clients if they participate in social networking, and caution them about the exposure it may give to their private lives and personal information. Your clients need to understand that information posted online is NOT PRIVATE.

Many people do not realize that if you have a Facebook account, the default privacy settings allow people who live in your region to see your page, EVEN IF THEY ARE NOT YOUR FRIENDS.

What does this have to do with personal injury law? It is SOP to alert plaintiffs to the possibility that they may be surreptitiously video-taped outside their homes. Have your clients considered if they want EVERYTHING they post online to be viewable by the insurance company’s legal team? OF COURSE NOT!

Plaintiffs in personal injury actions need to know that not only may their public profiles be viewed on such sites, but even private, restricted sites areas could be accessed.

Tell clients to think before they post, or Tweet or update …

An excellent article by Robert S. Kelner and Gail S. Kelner, “Trial Practice Social Networking Sites and Personal Injury Litigation” examines recent decisions about “intrusive adversaries” online. Some of the highpoints of that article are below:

By assuming other personas online, some insurance investigators have made connections with plaintiffs with the sole purpose of gaining access to private information and undermining their case. The Philadelphia Bar Association Guidance Committee called such subterfuge “inherently deceitful” and “unethical.” It is not the same as being monitored outside one’s home – as in the now seemingly quaint practice of video surveillance. Investigators may observe and record in public, but not by trying to pass themselves off as other people.

Legal Challenges to Cyber-Snooping…..

More and more, however, courts are being called upon to determine the access defendants’ legal representatives may have to plaintiffs’ personal information on social networking sites. Some judges have deemed it improper for plaintiffs to be contacted, even openly, in attempts to gain access to their private sites, “Such a request raises tension, familiar in personal injury lawsuits, between plaintiff’s desire to retain some measure of privacy over his personal affairs and defendant’s claim that it is entitled to prove for relevant discovery,” as Kelner and Kelner write.

Although adversaries may not be able to pose as “friends,” there are other means to access information online, and the legal issues become more complex as additional parties become involved.

Defendents’ legal counsel can try to:

  • Contact the company that created or hosts the social networking site to try and access plaintiffs’ details directly.
  • Ask for access to stored communications on the computers of plaintiffs’ connections, i.e. they may seek to obtain copies of e-mails sent to other people.

As a personal injury attorney, I don’t want anything to do with representing dishonest people. The point of this post is to be warn your clients about what they post on so-called “private” social-networking sites. Tell them they need to be totally honest with you, but that it is important to be aware that insurance companies will use EVERY means available to weaken a personal injury case against them.

Thanks for reading,

Jim
_________________________________________
James B. Reed, Esq.
NY & PA Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529

mailto:jreed@zifflaw.com

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