Post At Your Own Risk

By Maureen Kelly, Esq.*

We live in a world consumed by social media. Whether it be blogs, tweets, posts, snaps, links, podcasts, photographs, videos, pins, flicks, tumbles or tags, almost everyone has a social media presence. Shockingly, more than 25% of users do not bother with any kind of privacy control. What results could be a defense attorney’s dream: discovering a plaintiff’s post that bears directly on an issue in the case and reflects negatively on the plaintiff.

We all know that social media should be included in your discovery plan from the start of litigation. Using standard internet search tools, investigate whether a plaintiff has a social media presence. If it is public, there is no issue with searching for it and retaining it to use in the future. If a plaintiff does have privacy settings, there is always the option to use formal discovery—interrogatories and requests for production of documents—to learn more. If you are still unsatisfied and have a hunch that there is “more out there,” you can utilize a discovery motion to attempt to obtain additional information. The emerging trend among common pleas courts appears to be that, if information readily available on a party’s “public” page warrants a deeper probe, a judge will allow it. However, if nothing on a person’s public profile acts to open the gates of discovery, his or her private page will stay that way. A party seeking discovery must demonstrate that the information sought has relevance to the case at hand. In addition, the party seeking discovery must also “articulate some facts that suggest relevant information may be contained within the non-public portions of the profile” as opposed to simply guessing or presuming that the information sought could be there without a basis for so doing. (Judge R. Stanton Wettick, Jr. – Trail v. Lesko, CCP Allegheny County). The general rule and a practical pointer is to know what fact you are trying to prove and to articulate how the social media evidence will prove that fact.

In addition to the formal written discovery discussed above, a plaintiff’s social media presence should be monitored by both defense counsel and claims adjusters on a regular basis up to, and including, the time of trial. Nothing shows the importance of this concept more than the recent Superior Court case of Krayzel v. Roberts, 2015 Pa.Super.Unpub.LEXIS 4642 (Pa.Super. 2015). This case, as an unpublished decision, cannot be relied upon or cited by a court or a party in any other action or proceeding. Therefore, no attorney should specifically cite this case in any motion or argument before a court. However, the arguments of the attorneys and the rationale of the Superior Court in Krayzel can and certainly should be repeated to any court should a similar social media issue arise.

The Krayzel case involved a rear-end motor vehicle accident in 2010. The plaintiffs, father and son, alleged soft tissue injuries. The defendant admitted negligence, and the case proceeded to arbitration on damages only. The arbitration panel awarded a total of $20,000, $10,000 to each plaintiff, which the defendant then appealed to the Court of Common Pleas. The case eventually proceeded to trial with a stipulated maximum damages in the amount of $25,000 pursuant to Pa. R.C.P. 1311.1.

During the course of the two-day trial, defense counsel monitored the public Facebook page of the plaintiff son. It was discovered that he “tagged” his location at the courthouse and posted a comment that he was “becoming a millionaire.” The court permitted defense counsel to cross-examine this plaintiff on his statement, over objection. The jury returned a defense verdict, finding that the defendant’s negligence was not a factual cause of injury to either plaintiff.

On appeal to the Superior Court, the plaintiffs argued that the plaintiff son’s social media post should not have been admitted for several reasons, including that it was not disclosed to plaintiffs’ counsel despite an ongoing discovery request, that it was knowingly misleading as the parties had stipulated to limiting damages to $25,000, that statements with regard to the amount of damages demanded are inadmissible, and that it was otherwise inadmissible, irrelevant and prejudicial.

The Superior Court denied all grounds on appeal and affirmed the trial court’s decision, finding no abuse or error of law. Specifically, the Superior Court found the Facebook post relevant to show the son’s state of mind, bias, motive and credibility. (Citing Yacoub v. Lehigh Valley Med. Assocs., P.C., 805 A.2d 579 (Pa.Super. 2002) (stating that a party may cross-examine to explore credibility or bias that would affect the testimony of the witness)). The court found that its probative value in demonstrating that the son did not sustain significant injuries and was attempting to use the litigation to his profit outweighed any prejudice. Moreover, the statement was made by the son on his own Facebook account and was available to him.

What can we learn from this case? Obviously, perform formal social media discovery in your case. At the inception of the lawsuit, search a plaintiff’s social media presence and print everything out! Everything you find needs to be preserved in the event of a “delete happy” plaintiff. In addition, be sure to search social media throughout the case to gather information. Continue this periodically, up to the time of trial, as well as during trial. As the Krayzel case shows, you never know what you might find!

*Meg is a shareholder in our Scranton, Pennsylvania office. She can be reached at 570.496.4614 or mekelly@mdwcg.com.

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_{Defense Digest, Vol. 22, No. 3, September 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}