The Impact of Social Media and Cell Phones on Civil Discovery

Posted by Chris Morales on Wed, Jan 21, 2015 @ 12:00 PM

The Impact of Social Media and Cell Phones on Civil Discovery: Pitfalls and possibilities

Smartphone Nation: Mobile phone users are rapidly switching over to smartphones devices. 

  • In 2009-19% owned smart phones. 
  • In 2011-44% owned smart phones. 
  • In 2013-65% owned smart phones. 

Smartphone Nation
Social networking use is declining on the desktop while it's surging on mobile devices. Half of all smartphone owners visit social networks every day. Mom and kids under 13 are most likely to use social media on a smartphone in the car. 

How has social media and cell phones impacted on injury accident cases?
- Accidents are now reported via text message
- Photographs are now taken at the scene
- Recorded statements at the scene
- 911 calls from the scene are now recorded
- Course and scope of employment evidence

The Stored Communications Act - 18 U.S.C Sections 2701-2712
The Stored Communications Act (SCA) is a law that addresses voluntary and compelled disclosure of stored wire and electronic communications and transactional records held by internet service providers. SCA was enacted at title II of the Electronic Communications Privacy Act of 1986 (ECPA).

Vehicle Code Section 23123
Vehicle Code Section 23123 (a) a person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving. 

Vehicle Code Section 23123 - Violations

  • Is 23123(a) violated by holding a wireless telephone and looking at a map?  VC 23123 is limited to holding a phone while listening or talking on it. 
  • Does using a wireless telephone while stopped at a red light violated 23123(a)? VC 23123 applies while stopped at a red traffic light. You are still driving. 
  • Reasonable suspicion because "he was leaning down and looking."   

Social Media Consists of: 

  • Facebook/Twitter/Myspace
  • LinkedIn/Monster/Career Builder
  • Google+
  • Snap Chat
  • Instagram/Flicker/Tumbler 

Social Media Discovery - Impeachment

Social media has become more important in the discovery process.  Discovery can demermine:

  • Your ability to work 
  • Your pain level
  • Doctor's diagnosis
  • If you really emotionally distressed

What can an attorney do for me, if social media-discovery will be used against me?  

Your attorney can write out a letter for you explaining how the opposition will be using social media such as the relevance of online pictures and online comments. 

If you must continue to use social media:

  • Don't post anything you would want the opposition, a judge or jury to question you about. 
  • Set your privacy settings to most restrictive
  • Search your name, to see what's out there already
  • Do not accept friend request from unknown 
  • Don't post pictures or allow tagging 

No, No's for attorneys

  • Do not e-mail your client about their case
  • Do not text message your client about their case
  • Do not blog,chat room message/message board your client about their case 
  • Do not communicate with your client about their case via any social media networks 

Code of Civil Procedure Section 2017.010

The code of civil procedure section 2017.010 states: Unless otherwise limited by the order of the court, any party may obtain discovery regarding any matter that is relevant to the subject matter. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.

Be sure to keep in mind some of the points covered in today's blog. Limit what you post on social media and know that a person should not drive a motor vehicle while using a wireless telephone unless the telephone is specifically designed to allow hands-free listening and talking. 

Magnifying Glass on Keyboard

Tags: violation, discovery, social media