Our Chicago Personal Injury Attorneys ran across an interesting story the other day regarding the use of Facebook as an investigative tool in certain types of personal injury lawsuits.

How Facebook Can Make or Break Your Case

Eric B. Meyer – The Legal Intelligencer

Facebook has over 500 million active users.

Twitter users are recording an average of 55 million tweets a day.

If an employee files suit against your client, what are the odds the employee uses social media? I’d say they’re pretty good. Just imagine missing the Facebook post:

“I’ll do whatever it takes to get back at my employer.”

The first thing I do after I receive a copy of an employee-filed complaint — before I read the complaint — is check the plaintiff-employee out on Facebook and other social networking sites.

I print any information that employee has made publicly available. I save any pictures the employee has published online and I send a list of the employee’s friends to my employer-client to cross-check against a list of current and former employees. I do this because, generally, a Facebook user will allow friends greater access to online content.

Why do I want this information? Because many social media users do not filter what they publish online — they find social media cathartic. So, for every couple of banal “I’m going to the movies with John tonight” online posts, you’ll find an “I just had the worst day in the office because …” post.

Don’t believe me? Check out the blog post from Delaware labor and employment attorney Molly DiBianca, who writes about how a waitress lost her job for a complaint made on Facebook.

WHAT IF THE PLAINTIFF RESTRICTS FACEBOOK ACCESS?

Recently, in EEOC v. Simply Storage Management, a federal court permitted an employer to obtain discovery of an employee’s social networking activity that, through privacy settings, the employee had made “private” and not available to the general public.

That makes sense, right? I have yet to see a tweet or a Facebook status update appear on a privilege log.

So, as part of discovery, an employer should consider requesting:

All online profiles, postings, messages (including, without limitation, tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams, and blog entries), photographs, videos, and online communications that:

1. refer or relate to the allegations set forth in the complaint;

2. refer or relate to any facts or defenses raised in the answer;

3. reveal, refer or relate to any emotion, feeling, or mental state; or

4. reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.

IF THAT DOESN’T WORK, BRING OUT THE BIG GUNS: SUBPOENAS, SPOLIATION

If the responding employee no longer has access to responsive information, then go right to the source with a subpoena. As labor and employment attorney John Hyman explains in a recent blog post, many social networking sites use the Stored Communications Act, 18 U.S.C. § 2701 et seq., to aggressively protect the privacy of user content.

Suppose, however, the subpoena to the social networking website fails; try the plaintiff’s online friends. Each Facebook user has a “Wall.” Facebook users can post content, like photos, videos, and notes, to their own Wall and, usually, to a friend’s Wall. Facebook’s “Wall-to-Wall” feature allows you to see the history of Wall posts between two people. You can imagine, then, how this could come in handy during the course of litigation. Many Facebook users communicate Wall-to-Wall much as they would face-to-face.

If all else fails and you know that the plaintiff-employee is a Facebook user who has published online content relevant to the litigation, then you may have a good spoliation argument. Recently, Judge Shira A. Scheindlin of the Southern District of New York sanctioned 13 plaintiffs who failed to act diligently and search thoroughly at the time they reasonably anticipated litigation. According to Scheindlin, a recognized leader in e-discovery jurisprudence, writing in Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC.

[T]he courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party.

It’s 2010 and the way we communicate has changed dramatically.

Get with the times.

If your client is sued by an individual and you are not harnessing the power of social media as part of your litigation strategy, you’re making a BIG mistake.

Certainly this is something to consider as social media sites like Facebook and Twitter continue to grow in popularity. Our Chicago Injury Lawyers will keep you updated

Our Chicago Personal Injury Attorneys share the naked truth about worker’s compensation fraud.

DOYLESTOWN, Pa. (CBS/AP) A Pennsylvania woman who allegedly did a turn as a stripper will stand trial for taking worker’s compensation checks, when she said she was too injured to work as a waitress.

Forty-three-year-old Christina Gamble of Quakertown, Pa. waived a preliminary hearing scheduled for Tuesday and faces trial in September.

Prosecutors say Gamble claimed she hurt her back while waitressing and couldn’t work. A judge granted her $360 in weekly benefits in October 2008.

But private investigators scoping her out for her restaurant’s insurance firm say they taped Gamble dancing at C.R. Fanny’s Gentlemen’s Club and Sports Bar in Wilson later that year.

Gamble is charged with two counts of worker’s compensation fraud and one count of theft.

Our Chicago DUI Lawyers have often felt that the law comes down disproportionally hard on DUI offenders.  Want proof?  Check out the following two cases:

Oregon Appeals Court Overturns Car Impound On Driver Property

Oregon Court of Appeals ruled last that reaching one’s own driveway during a traffic stop can avoid more serious consequences. In November 2007, Officer Blood of the Cornelius Police Department attempted to stop Richard Chaves Gonzales for a traffic violation. Gonzales was just two or three blocks from home, so he did not stop until he reached his own driveway. Blood wrote Gonzales a ticket for driving on a suspended license and began searching the car without a warrant after declaring that he was going to impound the vehicle. Blood insisted that the search was valid. Because the court ruled the seizure was illegal, the evidence of cocaine possession obtained after conducting a search of the car was thrown out.

Okay, so no driver’s license, doesn’t stop for police, AND has coke on him. But he was in his driveway so he walks.  After all, he’s not DUI.

So what would happen to a driver who was suspected of DUI?

Texas Court Rules Home Offers No Escape From DUI Arrest

A Texas man thought he could avoid being hit with a driving under the influence of alcohol (DUI) charge by reaching his home before the cops could arrive. It did not work, the state court of appeals ruled. Joe Cruz Banda, Jr. was behind the wheel of his Ford Taurus in May 2008 after having had too much to drink. The Taurus eventually parked in a residential driveway and entered a garage where several other people were gathered. Officer Miguel Daniel arrived on the scene within ten minutes…Banda failed field sobriety tests and was arrested for DUI. The Harris County Criminal Court sentenced Banda to thirty days in the county jail, and Banda appealed his conviction on the grounds that…none of the officers had seen him driving, and Banda did not resemble the physical description relayed to the 911 operator. A three-judge appellate panel was not convinced…”A key factor used to justify the determination of a place as suspicious is whether the time frame between the crime and the apprehension of the suspect is short…. Because the totality of the circumstances show that the police possessed probable cause, appellant was found in a suspicious place, and exigent circumstances called for immediate action, we conclude appellant’s warrant less arrest is justified.” The appellate court upheld the trial court’s judgment.

Police didn’t even see him driving, the description given to 911 of the driver didn’t match him, yet the alleged drunk driver gets convicted.  Moral of the story?  Apparently it is better to have no driver’s license, cocaine, and flee the police rather than drive drunk.

Our Chicago DUI Lawyers want to remind everyone to drink responsibly this weekend.  Here is the DUI Checkpoint information for Chicago this weekend:

ROADSIDE SAFETY CHECK IN THE CHICAGO LAWN (008TH) DISTRICT

The Chicago Police Department will conduct a Roadside Safety Check in the Chicago Lawn (008th) District at 6450 S. Western Ave. The Roadside Safety Check will commence at 8:00 p.m. on Friday, August 6, 2010 and end at 4:00 a.m. on Saturday, August 7, 2010.

Chicago Defense Attorneys have been talking about this crazy arrest.   A 25 year old kid is now facing 16 years in jail after videotaping and posting a video of police pulling a gun on him during a traffic stop.

ACLU Preps Defense of Man Who Taped Police

Written by Scott Broom 9NEWS NOW & wusa9.com

Lexington Park, Md. (WUSA) — The American Civil Liberties Union of Maryland has taken up another case involving a motorcyclist who has been charged with a felony for videotaping police pulling a gun on him during a traffic stop.

Twenty-five year old Anthony Graber was pulled over by Maryland State Trooper Joseph Uhler in March while the motorcyclist was recording his trip on a helmet mounted camera. Graber admits to speeding, and one version of the video on YouTube shows him popping a wheelie as his speedometer hits 128 mph, while he was going north on I-95 in Harford County.

Uhler, who was in plainclothes at the time, briefly pulled his gun as he confronted Graber.

After Graber posted the video to YouTube, police raided his home, seized cameras and computers and charged him with a felony that could land him in jail for up to 16 years.

“I don’t want to go to jail,” Graber told WJZ in Baltimore. “It wasn’t a violent crime no one was injured.”

Police say they are applying the law fairly.

“We are enforcing the law, and we don’t make any apologies for that,” said State Police spokesman Greg Shipley when he spoke to WJZ.

When the police have to tell you that “they are applying the law fairly” you can bet it is not being applied fairly.

Our Chicago Lawyers reviewed the full tape of the arrest and really do not have any problem with the traffic stop, or the way the officer exited the car to make the arrest.  The driver was traveling in excess of 120 mph and popping wheelies. He is a menace to the roadways.

But raiding the guy’s home, taking computers, and charging him with a felony punishable by up to 16 years in prison is a bit much.

Could this be headed to Chicago? Well, Illinois and Maryland are the only two states that do not allow recordings without the consent of both parties – with, of course, the exception for the police who can record traffic stops without consent.

“Nothing to see here but the law being applied fairly. Move along.”