I have previously written regarding how social media web sites can have an impact on personal injury lawsuits. Today, I would like to discuss how an injured plaintiff can jeopardize the success of a lawsuit through using social media information to contact potential witnesses.
In today’s world, it is common for many people to use social media to contact friends and acquaintances. Social media can be used to exchange written information, photographs, videos, and other materials.
In the matter of Patel v. Havanna Bar, et al. Civil No. 10 1383 (E.D. Pa), the plaintiff fell from a second floor balcony/loft of defendant’s restaurant while attending an engagement party and was severely injured. In a written decision, the Court recounted how the plaintiff’s sister-in-law solicited and apparently received witness statements utilizing Facebook. She allegedly sent a Facebook message to persons who attended the engagement party requesting that the recipients compose statements recounting their recollection of the incident. The Court noted that the message implied, if not directly requested, that the statements confirmed that the plaintiff was not intoxicated. Two years later, the plaintiff’s sister-in-law allegedly sent another message to guests at the engagement party. Contrary to the previous request, she allegedly sought descriptions that the plaintiff was not intoxicated. She also made a new request for persons who may have witnessed the events of the night in question.
The problem arose when neither the 2008 nor the 2010 witness statements obtained by the plaintiff’s sister-in-law were provided to the defense during the initial discovery period. The defendants claimed that the plaintiffs engaged in spoliation and the Court agreed. Spoliation is when a party negligently or intentionally allows evidence to be lost or destroyed. As a result of this finding by the Court, a monetary sanction was issued against the plaintiffs and certain evidentiary presumptions and restrictions were applied to the balance of the matter.
The lesson from this case is that before one utilizes Facebook or any other social media to engage in investigation, it is important to first notify your lawyer that you or other parties on your behalf are engaging in such investigation. Further, only do so under the express direction of your lawyer. Also, promptly provide your lawyer any information you obtain through these means. It is important to also note that one should never under any circumstance misrepresent him or herself during the course of any communication on any social media site. If you have any questions about social media and your lawsuit, feel free to contact our office and we will attempt to answer any questions that you may have.
Michael Donahue is a Shareholder and in the firm’s Lawrenceville, New Jersey office, concentrating in Accident & Personal Injury Law. For more information, please contact Mr. Donahue.