Unmasking Plaintiffs on Facebook

/ 10.Jun, 2011
The internet and social media websites have invited the real time disclosures of even the most intimate details of a user’s life. Frequently, success in defending a claim rests on attacking the plaintiff’s credibility. Plaintiffs just cannot resist the temptation to exaggerate and “over-reach” on damage claims when they talk to their doctors, IME doctors and give sworn depositions. Why not? No one will ever know even know the difference. In the past we have used surveillance to keep the rascals honest.  But surveillance is cumbersome, expensive and subject to challenge; the old “plaintiff was having a good day when plaintiff was changing that tire on his car” testimony.  Enter MySpace, Facebook, Twitter, etc. The plaintiffs survey themselves and openly post pictures and prose that is at odds with the sorry face they present to defense counsel.  In the recent Northumberland County Court of Common Pleas case of Zimmerman vs. Weis Markets, the plaintiff injured his leg at work and was making a claim for scarring and the accompanying embarrassment. His public website photography showed him wearing shorts and smiling. The defense motion to compel discovery was granted by Judge Charles H. Saylor. Defendants obtained discovery of the plaintiff’s passwords, username and login name.  No privilege exists to protect information and images posted in the non-public portions of social websites. Social media discovery is a new and valuable tool to keep plaintiffs honest. Case law continues to develop in Pennsylvania in this interesting area.  Continue to check back to Swartz Campbell’s Auto Blog and website  for future updates. – Frederick Fletcher