Video: The Legal Implications of Social Media
In this episode, we sat down with Mike Thomas of Pennington, P.A. to discuss social media and the legal implications of using a cell phone and social media while driving.
John Davis: Since we’re talking about evidence, let’s talk about social media. That seems to be a big thing right now. I think before we started this you were telling me that several years ago social media was not as allowable into evidence and now it’s really one of the go to things next to a cell phone record of evidence. They want to know what’s going on and all the parties involved in the accident.
Mike Thomas: Right. 10, 15, 20 years ago, not a whole lot of judges and people out there knew about social media and social networking. Now it’s everywhere, right?
John Davis: Right.
Mike Thomas: Very few people had cell phones now we all have cell phones. Most of us now although I wear a watch, most people don’t wear watches now because they get the time on their cell phones. So we’re in the electronic and social media age. And 10, 15 years ago, judges didn’t understand about Facebook and Instagram and the social media and social networking sites and how important that could be to both sides of a case. Well, fast forward to today, I recently read a statistic, I think back in 2017. There were in one month on the average there were 2 billion users on Facebook per month. So people are using it. I think there’s 800 million folks daily on Instagram, sufficed to say that there are a lot of folks out there doing the social media and social networking sites.
Mike Thomas: Now judges understand what posting is and reposting and sharing and friending and posting photographs and those type things. And the law has evolved with the judges’ knowledge of the social networking sites. I do searches or have my paralegals do searches on the plaintiffs in every case that I have. I think a lot of good plaintiff lawyers will also research my folks that I represent, whether that’s truck drivers or managers or owners, they’ll be looking at their social media pages as well.
John Davis: Well, there’s a couple of interesting things about that. Number one, let’s go to the insurance company first, of the trucking company. So they insure the trucking company. Their claim off as to when they get a new claim, that should be one of the things that they’re asking for because litigation doesn’t always start immediately. And so the claim representative should know that, okay, I want a copy of the maintenance file. I want to copy the driver file, and I need a copy of the social media along with the cell phone records and all that to sort of preserve that evidence and help the trucking companies understand that, okay, these are the things that we’re asking you and this is why to preserve that evidence, sort of the freeze time at that moment.
Mike Thomas: Right. Because the plaintiff is ultimately going to ask for it and if I get an opportunity to look at it first, it will help me defend the case. And, honestly, I can deal with bad facts. And if I know if we have bad facts, we can work up the case in such a way as to resolve it quickly or in a better fashion, certainly. So it’s important for me to know those things early.
John Davis: Okay. The other side of that I guess is the drivers for … a commercial driver. So I guess the things … from listening to what you’re saying, it is discoverable. Things that are on their Facebook page or Instagram their Twitter, even Snapchat if they’re still using that or WhatsApp or any of those other social media things out there. They need to be careful what they post as a commercial driver because if they are posting that they’re having emotional issues or they’re posting they’re having family problems or they’re posting that they went out drinking a couple of nights before, the other attorney is going to use that against them in some way.
Mike Thomas: Right. It’s not unlike what I do. From a plaintiff’s standpoint, I will look at their social media information and I may see that on the day after this particular trucking accident they were at the beach playing volleyball and they post and repost and they share and people are commenting, “Yes I saw you, yes we won the game, yes you did great playing volleyball”, all that yet their claim is they’ve got soft tissue back injury [crosstalk 00:05:08] injury.
John Davis: [crosstalk 00:05:08] think about that angle right there that they’re claiming some injury and-
Mike Thomas: And I’ve got pictures of them two days four days a week later for whatever participating in a beach volleyball game and they’re bragging about how they skunk the other team. And I am amazed the stuff that I see in ongoing lawsuits that these people post these things you’d think they’d be smarter than that, they’re not. Over 50% of my cases I find a nugget on a social media site and I depose them and ask them about it and they authenticate it and I get them to agree, “Yes, that’s me, yes we played volleyball five matches in a row two weeks after this accident”, and there goes their case. But same goes to our drivers and our people. You don’t want to be posting something from the night before the next day or even the day of, “Hey, just got in an accident. I was speeding again, this was my fault I didn’t see”, or it was foggy, or whatever it was. Our drivers don’t need to be posting on social media before, during or after something like this.
Mike Thomas: And I know some people might be thinking, “Well, my post is private, and no one can get into that except people that I’ve accepted.” And I’m not a Facebook guy. So I don’t know the right terminology. But there are privacy settings, as I understand it. Guess what? The courts don’t care about your privacy settings. If you’ve got some of these social media accounts, the trend now is for the courts to say, “This is discoverable. Let your defense lawyer be specific about the dates and what you’re looking for.” And the trend now is as folks become more familiar with what social media is, most if not all courts now are saying, “That is discovering. Just narrow your search. I don’t care if you got a private setting or not.” And by the way, don’t delete any of this stuff. And we may get into that too and some other issues related to trucking, which is speculation of evidence.
John Davis: Right. Well, and that’s a one last thing that I thought about why you were talking is back to the claim people to really ask the questions, not just any copies of your social media accounts but let’s be specific. Well, what kind of social media accounts do you have? Because there are a lot of different options out there, and there are new ones coming out all the time. And so for them to really think about, and maybe for a claim person to really dig in. So how do you communicate with your friends? Or what app do you use? Might not be Facebook. I know a lot of … in the trucking world, the WhatsApp app is used a lot. And so you the lawyer may not know it. The insurance company may not know it, but they’re using it every day.
Mike Thomas: So I just read something about WhatsApp. Again, I’m not a big user of social media, or social networking necessarily but I read something recently that said there are 1 billion monthly active users of WhatsApp. A billion.
John Davis: Wow. And I’m like you. I barely even know what that app is about. But there’s a billion people using it.
Mike Thomas: Right. Apparently, it’s a smartphone messaging app. A billion people per month using it.
John Davis: Wow. Okay.
Mike Thomas: So it shows how important social media is. And you just got to be careful about what you post because I will find it. It’s my job to find if the plaintiff is posting something.
John Davis: Well, and that’s what happens is, okay, you send a letter out that says, “I want you to give me copies of your social media”, and they say, “Well, we did.” Then you depose them, and then there’s some conversation in that and you go, “Oh, you have this app. Why didn’t you disclose that?” Then that’s the issue. And I’m talking to my truck drivers and my commercial drivers out there. Think about that when you’re being asked for that information, to really think about the different ways you communicate with family and friends.
Mike Thomas: In that same regard, texting. As many requests as I have and make for social networking sites, I also request cell phone and well, cell phone records. And they will do the same of our drivers, and that is fair game. That’s one of the best ways they can show that maybe our driver wasn’t paying attention if he or she fielded a call or texted. And I’ve got experts, phone experts as do the plaintiffs. And oftentimes, in my case is we’re asked to produce a telephone of a driver, or a defendant in a case, and an expert computer phone person will look at that and they will be able to time a text, a call, and the length of that time or text or call. And it’s important to the defense ability and the prosecution of a case to know, “Listen, my folks were not on the phone at that time. And the phone records will show that.” It’s just as important for me to ask the same thing of the other side of their driver because maybe they’re comparatively negligent or maybe it is their fault that they were swerving or speeding or not paying attention because they happen to be texting or calling.
John Davis: Yeah. That came up at an issue of drivers of … I know of several cases that I’ve been involved in. Drivers are away from home and they’re driving all day. We’ve had some drivers that were on the phone for 12 hours in a day. And that’s got to be tough defending that because if they’re on the phone for a significant amount of time during the day-
Mike Thomas: Hard not to argue that they wouldn’t be distracted.
John Davis: Correct, correct. So I want you all to think about that when you are out there. I understand that you’re away from home and understand that you’re missing your family and that but that kind of stuff is what can get you in trouble on a case. So just think about that.