All social networking sites and blogs permit users to create “private” accounts that limit the amount of information they disclose to the public.  There are different levels of privacy.  Pages can be public, completely private, accessible by specified “friends” or some combination thereof.  For example, on Facebook, a user can make certain portions of their page, such as photos, available to the public and limit access to other parts of their page.  Or, a user can require that other users seek his or her permission before accessing their information.  A blogger may also create a “filter” so that only certain friends can read entries. With recent news articles and television shows on internet privacy, an increasing number of internet users are making their blogs and social networking sites accessible only to a limited group of friends.

Adding a plaintiff or co-defendant as one of your friends during litigation is a risky endeavor and should be avoided at all costs.  Some attorneys may think that merely adding plaintiff as a friend so that the attorney can access private photographs or blog entries does not constitute a forbidden ex parte communication.  Even if you do not engage in direct ex parte communications regarding the litigation, a court may see things differently.  I do not recommend asking your assistant, friend, family member or acquaintance to contact a party for you, either.  The risk of an ethics violation is not worth the remote possibility that you find admissible and useful information on a party’s social networking profile.

Adding a non-party witness as a friend is equally inadvisable.  The Philadelphia Bar Association issued an ethics opinion that directly addresses the issue.  The opinion evaluated  whether it is appropriate to access the private social networking site of a non-party as a witness for the purposes of obtaining evidence to impeach the witness.  The Philadelphia Bar opined that such conduct would be unethical, even if the attorney merely directed a non-lawyer assistant or friend to access the witness’ site.  The Bar disagreed with the suggestion that accessing a witness’ site via a third party was akin to online sub rosa surveillance, noting that sub rosa surveillance captures a person in public, whereas monitoring a private social networking site would be much like gaining access to a person’s home by way of deceit.

Expert witnesses should also be excluded from attorneys’ social networking sites.  Declining an invitation on Facebook or LinkedIn may feel awkward, particularly if you have a good rapport with your expert.  Opposing counsel will have an opportunity at deposition to ask the expert how many times your firm has retained them and how many times they have worked with you.  Even if you have only retained the expert once before or met the expert through a professional organization, links on networking sites may create the appearance that you have an ongoing personal relationship with the expert.  Listing an expert on your social networking site will almost certainly give plaintiff an opportunity to imply some degree of bias in deposition or trial.

While it may be tempting to extend your investigation of plaintiffs and parties by gaining access to private social networking sites, doing so can be dangerous.   Subpoenaing records from plaintiff’s private Facebook profile may be more expensive and time consuming than accessing her site directly.  However, using formal discovery to obtain that information will avoid any inference of impropriety on your part.  For similar reasons, expert witnesses should remain off of your professional and social networking sites.  While they may wish to build their business through networking, it is important that experts and attorneys understand the potential impact of displaying their connections to the public over the internet.

California courts allow successful parties to include certain trial technology costs as expenses under California Code of Civil Procedure section 1033.5(a)(12), which permits parties to recover costs for models and blowups of exhibits as long as they were reasonably helpful to aid the trier of fact.  In El Dorado Meat Co. v. Yosemite Meat and Locker Service, Inc. (2007) 150 Cal.App.4^th 612, the Appellate Court held that, following a defense verdict, the defendant could recover $2,250 for equipment to project documents on a screen at trial, noting that the trial court had discretion to determine that the projections constituted “blowups” and that the projection equipment was reasonably helpful to the jury.   Similarly, the cost of writing, directing and filming a videotape for presentation to the jury, has been deemed “a computerized form of blowup or model” and has been included as a recoverable cost where it was reasonably helpful to the jury. Science Applications International Corp. v. Superior Court(1995) 39 Cal.App.4^th 1095, 1104.

Both Science Applications and El Dorado also addressed the cost of labor to create databases for high tech presentations.  While Science Applications held that the cost of consultants to prepare a database was not recoverable, the Appellate Court’s holding was based on evidence that there were less costly means of presenting the same evidence and therefore that cost was not reasonably necessary to conduct the litigation, but was “merely convenient or beneficial to its preparation.”  California Code of Civil Procedure section 1033.5(c)(2).  The El Dorado Court permitted consultant and paralegal costs to create a database for use at trial.

Based on the relatively recent holding in El Dorado, it is advisable to include the cost of trial technology, including equipment rental and preparation costs when preparing a post-judgment memorandum of costs.  Courts recognize the prevalence and usefulness of technology to present evidence and are likely to become increasingly receptive to requests for costs relating to high tech presentations at trial.

Visual evidence of the accident can be extremely helpful in evaluating liability, especially early in the case.   Investigate whether the accident was captured by a surveillance camera.  I recently had a case where the full accident was caught on the security camera of a nearby construction site.  The plaintiff’s passenger’s descriptions of the accident were inconsistent with the video footage.  Our experts were also able to analyze the crash before we deposed witnesses and responding police officers.

Some cities install webcams at well-known intersections that are broadcast on the internet.  Caltrans streams live traffic on its website:  http://www.video.dot.ca.gov/.  Webcams may be less useful in litigation because they are usually streamed in real-time (or on a short delay) and are rarely recorded.  Caltrans specifically states that its videos are not saved.http://www.video.dot.ca.gov/

Local communities also sometimes install security cameras in public places to deter crime.  Napa, San Francisco and Hollywood are three California communities that have security cameras installed on public streets that may capture traffic accidents.

Television stations may also film the scene of the accident if it is deemed newsworthy.  If the accident was aired on television, search for the broadcast on YouTube or the station website and consider subpoenaing the original footage.  The picture and sound quality of internet video is sometimes inadequate for trial presentation.

Determine whether a traffic camera was installed at the scene of the accident.  Traffic cameras can include red light cameras, speeding cameras, turn cameras or parking cameras.  While many drivers dispute the accuracy of traffic cameras, the photographs and videos they capture may provide essential information, such as the identity of the driver, the license plate, vehicular speed and other traffic violations.  Traffic camera images are controversial, as the images are sometimes blurred and consumer groups claim that certain red light cameras are strategically placed at intersections with lights that are times to turn red too quickly for the speed limit.  Some California traffic courts have ruled them inadmissible because of their lack of reliability, particularly because the lights are operated and managed by private entities.  Additionally, some photos do not show the traffic signal or traffic signs in place at the scene of the incident.

Again, evidence from traffic cameras can be controversial — remember a proper foundation must be laid before such evidence can be admitted at trial. A recent California Appellate Court decision evaluated the admissibility of traffic camera photographs and held that the photographs were inadmissible hearsay and violated a traffic court defendant’s confrontation rights.  People v. Khaled 2010 S.O.S. 4217.  In that case, the appellant appealed a traffic court decision wherein a declaration by a police officer was used to lay a foundation for introducing photographs from a traffic camera.  The police officer was not present at the time of the alleged violation and the camera was maintained by a private contractor.  The contractor’s employees who maintained the cameras and data did not testify or prepare any declarations.  The appellant objected to the declaration as hearsay and violative of his confrontation rights.  The trial court overruled the objection and admitted the declaration regarding the traffic camera as a business record, with proper foundation laid by the police officer’s declaration.  In reaching its holding, the Appellate Court determined that the plaintiff did not lay an adequate foundation for characterizing the photographs as business records for the hearsay exception to apply.  To avoid exclusion of the records, determine the entity that actually records the footage and obtain declarations or testimony from persons with knowledge of how the footage is recorded and maintained to demonstrate that the business records exception to the hearsay rule applies.

YouTube, Facebook and MySpace can also be useful resources for locating witnesses.  Content posted by users is less searchable on Facebook and MySpace, but those websites can be useful for tracking down more information about witnesses, such as their location, employer and possibly their email address.

On Board Technology and Potential Distractions
Consider the technology in the vehicle and its potential impact on the case.  For example, a car salesman recently tried to sell me a vehicle that had a lane change warning device installed in it.  He pointed out that the feature was excellent because I could change lanes without looking.  Will plaintiff claim that your driver relied too much on technology, such a traffic collision warning system?  This is an important issue to evaluate if you represent a commercial vehicle driver or a recreational vehicle because these types of devices are more frequently found on those vehicles.

Following the presentation, I was inspired to explore the ways in which technology impacts motor vehicle accident cases.  This blog series will address the various types of technology and related issues that may arises in auto accident litigation.

Use of Cellular Phones and Navigation Devices
California’s Anti-Texting Law (SB 28) makes it illegal to send, receive or read data on hand held mobile devices.  Violation of the law could give rise to negligence per se in your case.

A pedestrian or other vehicle is clearly within the class protected by the statute.  Ask your driver detailed questions about whether he or she was using any technology during the course of the accident.  Many pre-installed navigation devices are inaccessible when driving.  However, stand alone devices and truck navigation systems may still operate while the vehicle is moving, a potential distraction that plaintiff may point to as a cause of the accident.

Plaintiff is likely to seek cell phone records, emails and other data from before, during and after the accident.  A navigation device may also store certain data, including the driver’s planned destination, departure point and prior destinations.

Drivers and Social Networking
If you represent a driver, find out about ALL of the driver’s social networking sites.  Ask for your driver’s email address as well so you can run a search of their email address.  Always run an internet search for your client, plaintiff and witnesses.  This should be your one of your first steps when you receive a case and police report.   Know the players before you propound or respond to any discovery.

Industry associations are another useful information source for researching experts. Organizations, such as DRI and TIDA offer electronic expert databases to members allowing for a fast exchange of information. A number of private websites, including Daubert Tracker also provide background information, including prior trial testimony, to users for a fee.

Adverse experts who specialize in a particular subject may post articles they have written on their websites explaining their views on subjects that may be relevant to your lawsuit. For instance, the surgeon who has written that rotator cuff injuries are usually chronic injuries caused by wear and tear over many years may be questioned effectively on that opinion when offering the view in pending litigation that a rotator cuff injury was the result of trauma. Where there are emerging issues and disagreements within the discipline, it may also be helpful to review the expert’s published articles to explore for inconsistencies.

Social networking sites such as Friendster, MySpace and Facebook are becoming useful resources for employers. Although there is no case law on the subject, there is growing concern that disgruntled job applicants will allege discrimination in the hiring process if their online profile, blog, or chat log prevents them from securing a position.

Steven Rothberg, founder of CollegeRecruiter.com points out: “Many people, especially students have an unreasonable expectation of privacy. There’s some awareness, and some password protections are being put in place for MySpace users, but on the whole, many of the younger generation think it’s a good thing to be an exhibitionist and talk about bad behavior.”

Rosemary Haefner, Vice President of Human Resources at CareerBuilder.com notes that candidates tend to be more honest in online blogs and profiles than on their resumes. A simple Google search can reveal an applicant’s fabricated qualifications in a matter of minutes.

As younger people enter the human resources field, it is likely that use of social networking sites to screen candidates will significantly increase. If discrimination suits arise, it will be difficult for plaintiffs to prove that the disqualification stemmed from a blog post or online profile. George L. Lenard, a labor and employment attorney, recommends that companies enact clear policies regarding internet screening of potential employees to avoid exposure to liability for discrimination.

The solution for job candidates is simple. By limiting the amount of negative information on personal blogs, social networking profiles, and both public and private online conversations, an applicant can easily protect his or her reputation.

Source: “Online Background Checks: As social networking sites grow, so does the ability of employers to discriminate,” Elizabeth Millard, ABA Journal, January 2007.

Statistics on Online Background Checks:

- More than one in 10 hiring managers search social networks to screen candidates, according to one CareerBuilder.com survey.

- Less than one in four hiring managers perform an Internet search to screen job candidates, according to Rosemary Haefner, CareerBuilder.com’s vice president of human resources.

Source: “Online Background Checks: As social networking sites grow, so does the ability of employers to discriminate,” Elizabeth Millard, ABA Journal, January 2007.

The Communications Decency Act of 1996 (”CDA”) Section 230(c)(1) shields providers of interactive computer services from liability for the actions of the individuals using those services. The law may also apply to employers that provide internet access to employees.

A recent case entitled Delfino v. Agilent Technologies, Inc, 2006 SOS 6033 granted immunity to an employer under the CDA. In that case, an employee of Agilent Technologies, Cameron Moore, posted anonymous threats on message boards and sent harassing e-mails to the plaintiffs through the employer’s server. Plaintiffs sued Agilent and Moore for negligent infliction of emotional distress and intentional infliction of emotional distress, claiming that Agilent knew Moore was using its computer system to threaten the plaintiffs and failed to prevent him from harassing them.

Moore posted numerous threats against plaintiffs on a Yahoo message board primarily under the screen name “crack_smoking_jesus”. The FBI traced the user’s IP address to Agilent’s computer system. Agilent, cooperating with the FBI, then traced the e-mails and message board posts to Moore. Agilent was not informed of the precise content of the messages, but met with Moore to discuss his use of the company’s computer system. Moore denied sending the messages. Agilent’s Standards of Business Practices included a section prohibiting use of company computer systems to send threatening or harassing materials. Moore was eventually terminated for this violation. Attorneys for the plaintiffs documented their quest for the anonymous user’s identity in a law review article. See Eisenberg & Rosen, Unmasking “crack_smoking_jesus”: Do Internet Service Providers Have a Tarasoff Duty to Divulge the Identity of a Subscriber Who Is Making Death Threats? (2003) 25 Hastings Comm. & Ent. L.J. 683.)

The court, using a broad application of CDA Section 230(c)(1) held that Agilent, by granting its employees internet access, was an interactive computer provider and it was not liable for the alleged torts arising out of employee communications sent through its computer system.

Full text version of Delfino v. Agilent Technologies.

For more information on e-harassment, please visit the following Wikipedia sources:
Internet Troll
Baiting
Flaming

Cyber Stalking Statistics (2002):

- 62% of Cyber Stalking Victims are Female, primarily ages 18-24.

- Groups most at risk for Cyber Harassment include:
- Women, particularly abused women
- Special Ability Groups
- Minors
- Members of Minority Groups
- New Internet Users

- Cyber Stalking Offenders are primarily male, but the number of female cyber stalkers is growing steadily.

- 25% of Offenders are personally known by their victims.

- 62% of all Cyber Stalking Victims are located in the United States

Source: http://www.wiredsafety.org/resources/powerpoint/cyberstalking_study.ppt

A legal blog published by Los Angeles litigation firm, Acker, Kowalick & Whipple. The blog is maintained by the firm’s attorneys’ Vanessa Case and Leslie Burnet.