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Facebook and the Personal Injury Litigant

By this point most of us are aware of social networking sites, the current darling being Facebook, which has taken over from MySpace, which took over from Friendster and so on and so on.  For those of you who have been living in a cave or otherwise “off the grid”, Facebook is a popular social networking website, where users create a page and have the ability to post messages, photos, videos, and links to other areas of the internet.  Unlike garden variety web pages, or other social networking sites, a user’s Facebook page is not open to the general public.  A Facebook user must grant access to their page by designating someone as their “friend.”  This is commonly referred to as “friending” someone.

Sites such as Facebook have steadily worked their way in to the American lexicon.  Readers may be surprised to learn that seemingly new terms such as “friended” and “unfriended” have been in the dictionary for hundreds of years.

While the term “defriended,” referring to removing someone from a user’s Facebook friend list, is a rumored contender as the one millionth official English word sometime this month.  Further, social networking sites themselves have been collecting data and studying trends such as national moods and gender stereotypes on a scale never before attainable.  Facebook alone boasts 400 million users.

All of this new and exiting technology must exist under laws that were written in a different time.  There seems to be a new generational attitude toward the free sharing of electronic information that can have very serious ramifications on legal proceedings, including a personal injury lawsuit.  Further, the exchange of information is all now written and can be found and scrutinized and used in a number of ways.  In the personal injury context the issue most frequently contested is privacy.

With increasing regularity litigants are asking for copies of electronic media including email postings, and information posted on social networking sites.  Whether this information is protected as “private” varies to some degree on the parameters of the page it is posted on.

Under the 4th Amendment to the U.S. Constitution, a litigant, like any other person has a right to privacy.  Whether this includes a right to privacy in Facebook postings depends on one’s “reasonable expectation of privacy” as put forth in the landmark case of Katz v. United States.  Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17 (1967).  The Fourth Amendment “reasonable expectation of privacy” test involves two questions: first whether an individual has shown that he or she seeks to preserve something as private and, second, whether an individual’s expectation of privacy is one that society is prepared to recognize as “reasonable.”  State v. Wacker, 317 OR 419, 427-28, 856 P.2d 1029, 1034-35 (1993); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17 (1967).

The first factor is fundamentally affected by the rules involving who has access to the information put up on a webpage.  For example, the default setting for MySpace used to be that anyone surfing on the web could view a user’s MySpace page, unless and until it was “set to private.”  Facebook, on the other hand, requires a user to give permission to the people who are allowed in to their page.  It is very difficult to argue that the information put on your MySpace page that anyone can view is information that you sought to preserve as private.  There is a better argument when it comes to Facebook, akin to only allowing certain people in to your home, not the world at large.

Additionally, under the terms and conditions one must agree to in order to get on to Facebook, users own the content they type in, however, Facebook owns and may use any content governed by Intellectual Property Rights, such as photos or videos for the time it is up and for a reasonable time thereafter.  Thus an argument can be made that you can’t have a reasonable expectation of privacy in the photos you post, as you have agreed to let Facebook own them, at least temporarily.

The second factor, whether an individual’s expectation of privacy is one that society is prepared to recognize as private, is much grayer territory.  Good arguments can be made on both sides, and ultimately the law should reflect the mores and attitudes of society at large.  Not surprisingly, there has been very little published case law in Oregon to guide what extent postings on sites such as Facebook can be used in lawsuits generally and admitted in to evidence at trial.  Often the issue can turn on whether the judge is willing to consider the nuances of the various rules governing the postings on these sites, or whether they take an approach such as “it is up on the web therefore there is no expectation of privacy.”

What does all this mean to people who find themselves in civil litigation?  Under Oregon law the discovery rules are very broad.  You, and the other side, are entitled to anything that is either,  relevant, or “reasonably calculated to lead to the discovery of admissible evidence.”  ORCP  36.  This is a very wide net.  “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.  ORS 40.150.  In reality this could be almost anything.  Further, the evidence allowed by discovery does not need to be relevant, just “reasonably calculated” to lead to admissible evidence which is even broader.

The rules governing what is ultimately admissible at trial, ie able to be viewed by the jury, are more stringent and complex.  However, it is clear that anything arguably relevant to the lawsuit will be “discoverable” meaning that it must be given to your adversary during the suit.  This includes relevant evidence put on Facebook postings, such as photos showing one’s physical capabilities, anything reflecting on the nature or extent of one’s injuries, or financial impact of the incident, just to name a few.

While Courts have not yet gone so far as to order litigants to “friend” their adversaries in the legal process, they typically will order the production of any relevant evidence put up on a Facebook or other social networking site.

Bottom line, if you don’t want the other side to see it, it is wise not to post it up on Facebook.

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