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Social Media in Lawsuits – Coyote Ugly Subpoenas Facebook

Social media outlets like Facebook and Twitter are becoming an almost ubiquitous source of news, information and networking. More and more people are joining these sites every day – “In fact, two-thirds of the world’s population that has access to the internet visits social networking or blogging sites.” In today’s web-obsessed society, people are putting their private lives on display like never before.

This social media phenomenon creates some interesting issues, if not paradoxes, to consider. In the first place, we are told over and over again that we cannot expect any privacy on the web. Any information that we transmit through this medium can potentially be intercepted by hackers, or accessed by employers, creditors or law enforcement agencies. On the other hand, the proprietors of many social media outlets, most notably Facebook, promise privacy to their users. We are told that we can control who sees the content we submit to our profiles, and limit it as we see fit.

Control over our online privacy is becoming increasingly questionable, given numerous and massive security breaches and as content is increasingly being subpoenaed for lawsuits. Increasingly, platforms such as social network applications, mobile applications, and blogs are being sought as sources of evidence to support or refute litigants’ claims. This evidence is sought either in discovery, or as support for existing claims. Either way, you should probably be cautious of any online content you post, in case you are ever on the wrong side a subpoena.

A recent case that illustrates the conflict between the benefits of online social media and the privacy issues it raises is a personal injury suit involving the slip and fall accident of a young woman at the famous Coyote Ugly Bar. The young woman was in Nashville at Coyote Ugly celebrating a friend’s 21st birthday. Coyote Ugly is known to have beautiful female bartenders who sometimes dance on the bar, and to encourage attractive female patrons to climb onto the bar and dance. This young woman climbed up onto the bar, slipped and fell and was seriously injured.

Coyote Ugly opposes including evidence such as accident reports from other bar falls; information about how its bartenders routinely offer body shots… and penalty shots, in which a bartender pours liquor straight into a customer’s upturned mouth and then spanks the customer; and Coyote Ugly’s policy of allowing only women to dance on top of its bar.(Coyote Ugly calls Facebook to the stand. The Tennessean, April 24, 2011)
The young woman claims the Coyote Ugly should’ve done more to prevent the fall, which caused some serious injuries including a skull fracture, brain hemorrhage and loss of her sense of smell. Coyote Ugly claims that the woman should’ve known better than to drink and then climb onto an elevated surface. Coyote Ugly sought discovery of the woman’s Facebook account, as well as those of some of her friends, in order to show that the woman had frequented bars before, perhaps many times, and should have known the dangers of performing physical activities while drinking.

“Facebook got involved because some of the witnesses were reluctant to give the defense attorney access to their Facebook pages,”
said Barnes’ attorney, Rob Shelton of Sales, Tillman, Wallbaum, Catlett & Satterley in Louisville, Ky.
(Coyote Ugly calls Facebook to the stand. The Tennessean, April 24, 2011
)

The woman and her friends did not grant access to their Facebook pages, so Coyote Ugly subpoenaed Facebook in an attempt to gain access to their records. Facebook successfully argued, based on the Stored Communications Act, that the records are protected and a warrant is required, rather than a mere subpoena, in order to release them. The Stored Communications Act was created to protect individuals’ 4th Amendment rights against unreasonable search and seizure, which until the information age had largely been interpreted to include privacy.

In the interest of helping the stalled lawsuit progress, the plaintiff eventually consented to having her Facebook account sealed and submitted to the court. Both sides are poring over the plaintiff’s personal photos, posts, comments, etc., arguing the relevance of each item to their side of the case. Although the plaintiff was not required by law to produce this evidence, it was necessary in order for the court to consider her case. Whether or not her case has merit, photos and details of her private life are now being carefully considered by strangers.

In this, the age of online social media, we have the ability to connect like never before. We can “view” the intimate lives of our online friends, and easily find new ones through our networks. We can broadcast our deepest ruminations or our thoughtless musings to our closest inner circle, or a thousand of our friends’ friends. But given the many problems in maintaining privacy and the potential for the posted information to be used against the poster, use of online social media should bear careful consideration…