Attorneys should be aware that there are at least two important decisions on utilization of social media at trial. Here is a quick review.
In Pennsylvania the relevant case for social media use at trial is McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270. In that case, McMillen claimed substantial injuries from a stock car race. Upon reviewing the public aspects of McMillen’s Facebook page the attorney for the Speedway requested access. The judge provided access noting specifically that the Facebook information was not privileged.
A recent case in New York also allowed for utilization of social media. In that case Dorothy McGurk claimed substantial disability and received $850 per month in alimony. Mrs. McGurk, a frequent Internet user, posted on her blog, as well as on Facebook and MySpace, about belly dancing and Reikki training. The Justice admitted the posts and determined in combination with cross-examination that helped reveal the truth, that Mrs. McGurk was not disabled. The Justice denied the request for continued alimony payments, gave Mr. McGurk a 60% share of a prior settlement from a car accident, and ordered Mrs. McGurk to pay Mr. McGurk $5,000 in attorney fees. See B.M. v. D.M., 50333/2007, NYLJ 1202489916893, at *1 (Sup. RI, Decided April 7, 2011) and http://www.dailybusinessreview.com/PubArticleDBR.jsp?id=1202490141680&hbxlogin=1
It is clear from these cases that judges are willing to admit relevant evidence from social media use and that clients are damaging their cases, sometimes to the point of destroying them, with the information they share online. It is, as a result, crucial for attorneys to investigate both their client’s social media use, as well as the use of social media by witnesses and the opposing side.