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.”

Our Chicago DUI Lawyers found this latest DUI article in the LA Times that reminded us of the old Lisa Minnelli quote: “smoking is one of the leading causes of all statistics”.

Huntington Beach police may identify suspected drunk drivers on its website

July 30, 2010|By Britney Barnes, Los Angeles Times

The Huntington Beach Police Department is considering posting the names of drunk-driving suspects on its website as part of a stepped-up strategy to address the problem downtown and citywide.

In a report submitted to the City Council this month, police said drinking and driving is a “significant problem” in Surf City and suggested that publicly posting names sends a message that police are cracking down.

A police official says publicly posting names would not be ‘a wall of shame’ but send a message that officers are cracking down on a ‘significant problem’ in Surf City.

Oh, of course it isn’t a wall of shame.  Why would anyone think that? But what exactly is the “problem”  that they are so concerned about cracking down on?

For the last three years, on average, Huntington Beach police have made 1,700 drunk driving arrests a year — the third-highest for cities in California with similar populations in 2008, according to the report.

Wow.  That sure is an abnormally high amount of arrests.  Are there any stats to justify those high arrest totals?

The city also has the fourth-highest number of alcohol-related traffic collisions for its population.

Ah, yes -  “alcohol related traffic collisions”  What does that mean?

Well The National Highway Traffic Safety Administration (NHTSA) in the U.S. defines a non-fatal traffic collision as alcohol-related if either a driver, a passenger, or a pedestrian had a measurable or estimated BAC of 0.01 g/dl or above. This statistic is reported only by police reports which may be based on police suspicion due to a variety of cues or circumstances. Further these reports do not collect data in a uniform manner throughout the USA.¹

In other words, each police department is free to define what creates a “alcohol-related traffic collision.”

So two sober drivers get into an accident while one is exiting the parking lot of a restaurant that serves alcohol.  How is that classified?  How about the sober driver who taps the bumper of a car in front of him while driving a passenger who is “suspected” of having 1  beer?  Neither scenario involves “drunk driving” – but both will be reported as a “alcohol related traffic collisions”.

So that becomes the effective statistical prop to justify this behavior:

Reinhart said officers are trying to focus on being proactive instead of reactive when it comes to drinking and driving.

Great.  It will be just the movie “Minority Report” in which the “Precrime” unit used 3 physics to predict murders before they happen.  No word in the article as to how much money all those DUI arrests have generated the Police Department and the City – or if they employ any physics.

¹http://www.nhtsa.gov/people/injury/research/alcoholcountries/background_&_intro.htm

Another Drunk Driving Checkpoint coming this weekend.

DUI STRIKE FORCE PATROL IN THE MORGAN PARK (22ND) DISTRICT The Chicago Police department will conduct a DUI Strike Force Patrol in the Morgan Park (22nd) District beginning at 7:00 p.m., Friday, July 30, 2010 and ending at 3:00 a.m. on Satruday, July 31, 2010.

Our Chicago DUI Attorneys encourage everyone to be responsible while driving.

Our Chicago Injury Attorneys were shocked to hear of the 9 year old boy who was stranded at O’Hare for 8 hours due to a United Airlines employee oversight.

Boy, 9, Left Stranded At O’Hare For 8 Hours

CHICAGO (Sun-Times Media Wire)

A 9-year-old boy, traveling alone and heading home to Canada, ended up stranded for eight hours at O’Hare Airport because a United Airlines employee forgot to get him out of the airline’s child-care center and bring him to the gate for his connecting flight, the Sun-Times is reporting.

And what was United Airlines’ response?

“He missed his flight — we put him on the next available flight,” Megan McCarthy, a spokeswoman for Chicago-based United, confirmed Monday.

“He missed his flight” – wow.  Our trial lawyers feel that United Airlines has missed the point.

So, can the boy sue?  Our Chicago Lawyers research this a little bit and found this story for some guidance:

Ark. woman’s lawsuit against airline dismissed

A federal appeals court has upheld the dismissal of an Arkansas woman’s lawsuit claiming she was illegally imprisoned on an American Airlines plane for 9 1/2 hours.

The 8th U.S. Circuit Court of Appeals agreed with a federal judge that the airline’s conduct did not amount to false imprisonment as claimed in the lawsuit by Catherine Ray. She was among the passengers stranded on the tarmac in Austin, Texas, on Dec. 29, 2006 when the flight from Oakland, Calif., to Dallas was rerouted because of bad weather.

One could argue that being stuck on an airplane is far worse than being stuck at an airport.  Interesting legal challenge to say the least.

The “naked cowboy lawsuit”, as reported by the New York Post has even some of the best lawyers in Chicago shaking their heads.

Naked Cowboy Sues Naked Cowgirl

Hide ‘em, cowgirl!

The Naked Cowboy wants a judge to force the Naked Cowgirl to cover up.

The Times Square legend, whose real name is Robert John Burck, said comedian Sandy Kane has been stealing his schtick and hurting his rep.

His federal lawsuit says Kane not only dresses like the Naked Cowboy (he actually wears underwear, boots, guitar sling and a cowboy hat), but has stickers of him on her guitar, and has been falsely claiming that the CD she’s been hawking features a duet with him.

“This is not about money. Its about preserving the integrity of the brand,” said the cowboy’s lawyer, Joey Jackson.

Oh, of course it’s not about money, if that’s what you think.  It’s about, uh artistic integrity, right?

Burck has his own website, and sells franchising opportunities for aspiring naked cowboys and cowgirls, but Kane hasn’t signed on with the program.

So she is not a franchisee, (read: he’s not making money on her back) so she is now infringing on his “brand’ – which consists of basically playing guitar in his underwear.  Classic.

Our Chicago DUI Lawyers found this interesting news item this afternoon regarding the neo-prohibitionist group MADD.

Mothers Against Drunk Driving receives “D’” score – By Sheldon Dutes

GOOSE CREEK, SC (WCSC) – Mothers Against Drunk Driving (MADD) is in the hot seat after a dismal score from the American Institute of Philanthropy (AIP). The AIP Charity Guide and Watchdog Report gave MADD a “D” rating on a A-F scale in its 2010 report.

According to AIP and the American Beverage Institute, MADD received its score because of poor fund raising and accusations that it doesn’t focus on victim services as much as it should.

Based on the AIP Charity Rating Guide, MADD got such a low score because of its poor fundraising and spending practices.

According to the American Beverage Institute, in 2008 MADD spent almost $30 million on salaries, leaving just a third of its budget, or $15 million, for charitable work and victim services.

So MADD is spending 2/3′s of its budget on salary?  What’s MADD’s response?

In response to the downgraded rating from the AIP Watchdog Report, MADD’s national office released the following statement:

“Our focus on drunk driving, underage drinking and victim services is stronger than ever. While methodologies for determining efficiency differ, we are proud to invest more than three fourths of our funds in programs to support people and save lives and continue to streamline our efforts to be fiscally responsible. Like many, we’ve experienced challenging economic times. Although we have saved almost 300,000 lives and counting, the problem of underage drinking and drunk driving is far from solved. This simply means we need the public’s assistance now more than ever.”

“This simply means that we need more money”.  Wow.