Discovery

Beware of Social Media!

We all spend way too much time browsing social media. It is easy to get lost looking at Facebook, Twitter, Instagram, and every other platform that has become a way of life. Although most of the time spent on social media is harmless, sometimes what seems harmless often can be problematic.

Recently, an article was published on a local news site about a Bucks County man who is facing federal charges in connection with the Capitol riots in January. The FBI was tipped off when it was sent screenshots of a post his wife made on Facebook detailing her husband’s account of the incident – which he attended. Another recent article was published about a New York man who is being charged with disability fraud. Why? Because pictures emerged on his wife’s Instagram account of this “disabled” man running a business and pumping iron.

After all, social media posts are designed to be public, but they can also be problematic, as these men discovered. The same applies for the average person who may believe that their posts don’t matter. They do.

At the Law Offices of Daniel J. Siegel, we represent injured workers in workers’ compensation claims, disabled persons who are seeking Social Security benefits, and persons injured in slips and falls and motor vehicle accidents. In all of those types of cases, we advise our clients to be very careful about what they post to social media.

Posts about your activities or your whereabouts could potentially impact your case. Claiming you are injured and need to receive workers’ compensation benefits while posting photos of you hiking in the mountains, for example, can make your claims seem more than a little bit unbelievable. Even if your account is “private,” you never know who is looking or may decide to forward on information. I am sure the wife of the Bucks County man wasn’t thinking any of her “friends” would pass on information to the FBI! The post had been later deleted from public view, but the screenshots already existed. And the New York man’s wife used her Instagram account very publicly to serve her own business.

It is now very common in litigation and other proceedings to be asked about social media accounts. And even if the question never comes, often, the lawyers are looking. Make sure you are careful about what you post, and never discuss your case! And make sure you control who can “tag” you in their posts. When in doubt, don’t post. If you do, and aren’t careful, it may cost you.

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May I instruct the witness not to answer?

Even seasoned attorneys sometimes struggle with whether a communication is privileged or protected by the work product doctrine. Whatever the attorney decides can have significant implications in discovery and the trajectory of a case.

In Cohen v. Ellwood Crankshaft and Machine Co., No. 11212 C.A. 2016 (Pa. Ct. Comm. Pl. Lawrence Cnty. Aug. 29, 2019), the trial court denied a motion to compel a witness to answer questions that called for privileged information. Plaintiff had alleged a claim for premises liability against the property owner (Ellwood) because he was injured at work. Ellwood then filed a third-party complaint against Plaintiff’s employer (Mascaro) seeking indemnification based on their contract. During the deposition of Mascaro’s corporate designee, who was its corporate counsel, Ellwood’s attorney asked questions regarding the applicability and enforceability of the indemnification clause. The designee answered questions concerning the factual basis for the denial of indemnification, but Mascaro’s attorney instructed the witness not to answer questions concerning the legal basis for the denial, arguing the questions called for “mental impressions or opinions concerning the ultimate legal issues of this case.”

The trial court agreed with Mascaro that the questions sought “conclusions and opinions regarding an issue of law that will ultimately be decided by the Court,” and therefore are protected by Pa. R. Civ. P. 4003.3. Rather, such questions would only be proper in actions for malicious prosecution or abuse of process.

The applicability of the attorney-client privilege and work product doctrine is fraught with serious implications. Our office regularly assists attorneys encountering these and other difficult questions, and can assist at any point in the litigation. Just give us a call at (610) 446-3457.

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Plaintiffs Must Be Careful Using Social Media When Pursuing Injury Claims

According to recent surveys, two-thirds of all American adults use Facebook, with the majority using it on a daily basis. Social media platforms are ever-growing and changing, with 78% of people under the age of 24 now using Snapchat, and 71% using Instagram. Using these platforms to make statements or post photos has become second-nature for many, and you might not realize the risks of using social media if you are in the midst of a legal battle. If you are pursuing a legal claim, especially for personal injuries, workers’ compensation, or other claims involving physical and emotional injuries, you must be cautious when using social media. Any information that you post may be seen and requested by the other side, and even information you believe is private can be discoverable.

Recently, a Monroe County Court of Common Pleas Judge granted a defendant’s motion to compel discovery, including access to the plaintiff’s Instagram account, in a personal injury lawsuit. In that case, defense counsel offered publicly viewable posts from the plaintiff’s account that seemed to show physical activity inconsistent with her alleged injuries. The facts of that case are particularly interesting because while the plaintiff’s account was publicly viewable at the time of the offered posts, she had since changed her account to private. The Judge determined that full access to the account, which plaintiff had previously denied existed, was relevant to verifying the extent of her injuries and rehabilitation.

If you are in litigation or considering pursuing a claim for injuries, you should refrain from communicating about your case or disclosing anything on the internet or social media. While you do not need to stop using social media or the internet altogether, you must be very careful about what information, videos, photographs, and so on that you post online. Like the example above, photographs and other posts can be used by the other side to argue that your injuries have not prevented you from certain activities. In addition, embarrassing or profane materials could be used to try to attack your character.

We regularly represent injured persons, and we always advise our clients of the implications of social media use when pursuing claims for workers’ compensation or personal injury matters. If you have been injured in an auto accident, slip and fall, work-related, or other accident, call our office at 610-446-3457 to set up a consultation with our attorneys. We can guide you through the process, and advise you about what you should expect and consider when pursuing your claim.

 

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Philadelphia Bar Association Ethics Committee Concludes That Social Media Evidence Must Be Preserved and Produced

A lawyer has a duty to preserve relevant, or potentially relevant evidence posted on social media websites, according to an ethical guidance opinion issued by the Philadelphia Bar Association Professional Guidance Committee on July 7, 2014. The Opinion emphasized that a lawyer’s duty to preserve evidence does not change simply because the information is on a social networking website such as Facebook. Regardless of where the information comes from, lawyers must comply with their obligations under the Pennsylvania Rules of Professional Conduct.

The opinion, No. 2014-5, focuses on two issues: (1) what a lawyer may instruct a client to change or remove from the client’s social networking site, and (2) what obligations a lawyer has when responding to a discovery request seeking social media content.

The Committee, applying Pa. R.P.C. 3.4 (“Fairness to Opposing Party and Counsel”), concluded that a lawyer may instruct a client to change the privacy settings on the client’s social media site. However, a lawyer may not instruct a client to destroy any information already posted on the page. This does not mean, however, that a lawyer cannot instruct a client to remove content that may be damaging to the client’s case. Instead, the lawyer may instruct a client to remove the information but must take “appropriate action” to preserve the information in case it becomes relevant and discoverable in the case.

The Committee also noted that changing the privacy settings on a social media site to restrict who may access its content is permitted under the Rules because changing the privacy settings does not change the content on the site. There are other ways to access the content, and the Opinion cites multiple cases where courts have granted motions for discovery of social media information. While it may be more cumbersome for opposing counsel to retrieve relevant information, there is nothing unethical about instructing clients to change the privacy settings on their social media sites.

Addressing the second issue, the Committee relies on Pa. R.P.C. 4.1 (“Truthfulness in Statements to Others”) to conclude that a lawyer, in response to a Request for Production of Documents, must make reasonable efforts to obtain and produce relevant social media content if the lawyer knows that a client possesses that information. However, a lawyer is not required to take any affirmative steps to obtain information that is under the control of a third party.

This opinion now gives lawyers some guidance on their ethical duties relating to a client’s use of social media. Social media evidence still must be preserved and produced like other types of evidence. Our office regularly addresses a variety of legal ethics issues dealing with social media and other areas of the law.

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No Discovery of Communications Between Counsel and Experts

On July 10, 2014, the Pennsylvania Supreme Court erased any doubt that it intended to bar all discovery of communications between counsel and experts by amending Pa.R.Civ.P. 4003.5 to prohibit such communications. The amendment, effective August 9, 2014, confirms the Supreme Court’s Opinion in Support of Affirmance in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, 91 A.3d 680, 689 (Pa. 2014), in which an evenly-divided Court affirmed an en banc decision of the Superior Court. The Order amending Rule 4003.5 is not surprising in light of the fact that Justice Stevens, who did not participate in the Supreme Court’s deliberations, was a member of the Superior Court majority that upheld the ban on this type of discovery. Click here to view the Order amending Rule 4003.5, the Comment to the amendment, and the Barrick Opinions.

Under revised Rule 4003.5(a)(4), a “party may not discover the communications between another party’s attorney and any expert who is to be identified pursuant to subdivision (a)(1)(A) or from whom discovery is permitted under subdivision (a)(3) regardless of the form of the communications, except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law.” The Rule states that it “protects from discovery draft expert reports and any communications between another party’s attorney and experts relating to such drafts.” While Rule 4003.5(a)(2) continues to permit further discovery beyond interrogatories “upon cause shown,” the tone of the Rule and the comments to the Rule make it clear that such discovery is not favored.

In Barrick, an evenly-divided Pennsylvania Supreme Court affirmed the Superior Court’s prior ruling that communications between counsel and an expert are privileged material pursuant to Pa.R.C.P. 4003.3 and 4003.5. In the April 29, 2014 ruling, the three Justices who supported affirmance noted that “Rule 4003.3 balances the general rule of expansive discovery with the deep-rooted protection of attorney work product, and that “attempting to extricate the work product [provided to an expert] from the related facts will add unnecessary difficulty and delay into the discovery process.”

Conversely, the three Justices who supported reversal noted that the “Court’s procedural rules do not establish a categorical prohibition against discovery of all correspondence between an attorney and an expert. [Consequently,] purely factual or other information — such as evidence and scientific doctrines that an expert may consider when forming an opinion — that does not represent core attorney work product, although contained within communications between counsel and an expert witness, does not fall within Rule 4003.3’s protective scope … therefore, we would hold that it may be discovery — so long as the mandates of Rule 4003.5 [concerning discovery related to expert testimony] are satisfied.”

Justice Saylor, who authored the Opinion in Support of Reversal, dissented from the Order implementing amended Rule 4003.5. Chief Justice Castille and Justice Eakin, who joined in the Opinion in Support of Reversal, did not dissent from the Order amending Rule 4003.5.

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A Divided Pennsylvania Supreme Court Affirms That Communications Between Counsel and an Expert Are Not Discoverable

In the long-awaited decision in Barrick v. Holy Spirit Hospital, an evenly-divided Supreme Court today held that communication between counsel and an expert are privileged material pursuant to Pa.R.C.P. 4003.3 and 4003.5. In so ruling, the three Justices supporting affirmance noted that “Rule 4003.3 balances the general rule of expansive discovery with the deep-rooted protection of attorney work product, and that “attempting to extricate the work product [provided to an expert] from the related facts will add unnecessary difficulty and delay into the discovery process.”

The three Justices supporting reversal argued that “This Court’s procedural rules do not establish a categorical prohibition against discovery of all correspondence between an attorney and an expert.” Consequently, “purely factual or other information — such as evidence and scientific doctrines that an expert may consider when forming an opinion — that does not represent core attorney work product, although contained within communications between counsel and an expert witness, does not fall within Rule 4003.3’s protective scope … therefore, we would hold that it may be discovery — so long as the mandates of Rule 4003.5 [concerning discovery related to expert testimony] are satisfied.”

Click here to read all of the Opinions in Barrick.

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