Facebook is Fair Game

Can Facebook and other social media outlets be used in discovery in the face of a personal injury claim?  According to some judges, yes, Facebook is fair game.  Demanding login information in order to uncover something damaging is something defense attorneys have been trying to do for quite some time.  They argue that a smiling profile picture, taken and posted after an alleged injury, could potentially be proof that the plaintiff might not be in as much pain as they’re claiming.  A case in New York, Romano v. Steelecase, 2010, dealt with this exact issue.  The defendant cried, “Foul!” and did not believe the plaintiff’s claim of injury.  To him, her Facebook updates and photos told a different story.  The defense was granted access to accounts, including deleted content, to go fishing for more damaging material to discredit the plaintiff.

E-discovery is not a new practice, but these days, it seems like a new social media application is created as soon as you get comfortable with the current one.  It begs the question, what information is admissible and what crosses the line?  If you’ve got your finger on the pulse of the social media world, chances are, you not only have a Facebook account, but you Tweet regularly about your Pinterests and Instagrams that you StumbleUpon as you Tumble through MySpace.  If that’s the case, your cyber footprint spans the social media galaxy, and certain judges have decided that updates and posts can be discoverable.  The main justification for this is the belief that social media users publish certain things, both generic and personal, with the intent that those posts circulate the Internet.

Before you object, not everything is admissible.  Judges have begun challenging the defense to be more specific in their requests for information.  In order to gain access to accounts, they must be able to show that the plaintiff is acting in such a way that contradicts their alleged restrictions, disabilities, and losses.  Believe it or not, the court is not interested in sifting through all the nonsensical status updates, food pictures, and GIFs of cats in the hopes that they might uncover something that is relative to the case.

With everyone and their brother informing the world of their latest conquests – “in 140 characters or less” -- the amount of information stored in the digital world is overwhelming.  And when an overzealous attorney is given access to this rabbit hole, the court gets stuck rifling through all the foolishness unrelated to the case.  A blurry picture on a third-party’s Facebook wall of someone that looks a little like the plaintiff standing near what looks to be something that could possibly, maybe, potentially contradict their claims to injury is not something to discover.

If you find yourself in the middle of a personal injury claim, think twice before you post a picture of yourself bungee jumping in New Zealand.  Facebook is fair game.

Freedom of Press and the Cause of Liberty

In November of 1733, a German immigrant printer, John Peter Zenger was approached by two men who wanted to expose the corruption and abuse of power of the colonial Governor of New York Province, William Cosby.  Zenger, also fed up with Cosby’s lowly ways, agreed and founded The New York Weekly Journal.  At that time, there already was an established New York newspaper, The New York Gazette, but Cosby censored all publications; not a single word was printed that may have painted him in a negative light.  The first issue of The Weekly Journal outlined Cosby’s crookedness and deceit, and essentially labeled him an “idiot.”  From rigging elections to allowing the French enemy to explore the New York Harbor, Cosby’s scandalous behavior was finally on display for all to see. 

Cosby put up with the criticism for two months before he had The Journal charged with “seditious libel.”  Authors of the articles remained anonymous as to avoid backlash from the Governor.  However, as publisher, Zenger’s name was on every issue, and thus, he found himself in the crosshairs of the Governor.  Cosby had Zenger arrested and jailed for eight months leading up to the trial.  James Alexander and William Smith first represented Zenger, however, after they objected to the two-man court that Cosby had hand-picked, they were promptly disbarred.  Andrew Hamilton, one of the most renowned and eloquent attorneys in the colonies, came to Zenger’s defense and a jury selection began.  With a blatant example of his abuse of power, Cosby initially stacked the jury with people on his payroll.  Zenger’s wife, still publishing The Journal, was able to report on this and the jury was eventually replaced with a group of Zenger’s peers.

On August 5, 1735, twelve jurors made history and paved the way for a free press when they defied Cosby’s strong-arm tactics and came back with a “not guilty” verdict for Zenger.  The jury’s verdict was one of the first instances of jury nullification.  The law, at that time, stated that a person was guilty of libel if they published any information that was opposed to the government; truth or falsity was irrelevant.  The judge, his hands deep in the pockets of Cosby, all but told the jury that they needed to return with a guilty verdict.  Hamilton was passionate, and despite his argument substantially lacking a foundation of actual law, he adamantly stated that “truth was an absolute defense against libel.”  In one particularly moving moment, Hamilton explained that “Newspapers allow for the exchange of ideas and for the voicing of dissent.  When a corrupt government holds power, the press becomes a critical weapon.”  He went on to say that the crux of this trial was not a cause of one poor printer, but the cause of liberty.

Following a zealous closing argument, the jury returned from deliberation a mere ten minutes later at which point they voted unanimously to acquit the publisher of the charges against him.  This monumental decision established the precedent that “a statement, even if defamatory, is not libelous if it can be proved.”  In Cosby’s case, proof was abundant.  This would be of utmost importance in the following years as the Revolutionary War would come to a head.  In a rather poetic aftermath, the Bill of Rights would be adopted by Congress in the same building where Zenger was jailed, tried, and vindicated.

To end with an appropriate quote that as been attributed to Edmund Burke years before this trial, “All that is necessary for the triumph of evil is that good men do nothing.”  John Peter Zenger, Andrew Hamilton, James Alexander, and William Smith were a few good men who decided that they were going to do something.