THE internet has become one of the most powerful instruments for socializing and reaching out to people. Social networking sites have become virtual coffee shops where people meet new friends or catch up with old ones by "posting" information on their personal sites. The information could be written or photographic in nature.
Because of the abundance of information posted on social networking websites, attorneys looking for evidence in their cases are going online to obtain information for use in the lawsuits. How is this relevant to one involved in a lawsuit?
For example, an hourly employee who has access to the internet while working may be tempted to use work time for personal activities. While at work the employee may send personal emails, forward jokes to friends, upload and share photos or "surf" other websites to read the news or shop online. Down the road the employee files a claim for unpaid wages, stating that he or she worked more than 8 hours per day but was not paid overtime. In defense, the employer retrieves the employee’s internet browsing history from the company’s computer server. The employer prints out all the emails and photos the employee has sent and tracks all the websites the employee has visited using the company’s computer on company time. The employer can then show to a jury that the employee was not really working during his or her work hours. This will likely drastically diminish if not negate the employee’s overtime claim.
There is the story of a female employee who, in a sexual harassment case, claimed to have been offended by the supervisor’s sexist remarks. However, a search of the employee’s computer hard drive at work revealed that the employee frequently engaged in the exchange of "green" or sexually inappropriate jokes with her co-employees. Understandably, that case did not go anywhere.
Or consider a personal injury claim that went horribly wrong because of an indiscrete posting on a website: A young woman was in the middle of a personal injury lawsuit when she made a post on her website telling her friends that she was going to get a lot of money from her personal injury case. However, the young woman had previously testified in a deposition that she needed money to pay for her medical treatments. Opposing counsel, who found the posting, used the information to discredit the young woman’s testimony. She was portrayed to the jury as a money-seeking plaintiff out to milk the civil justice system. Needless to say, the case did not turn out well for this young woman.
The examples above are just some of the issues that we encountered in our litigation practice. Of course, evidence taken from the internet can be used not only in employment or personal injury cases but in other areas of litigation as well – in family law and divorce cases, for example.
While people should not be discouraged from using the internet to further their social activities, caution and discretion should become a motto. Various internet activities are hardly private, especially if internet access is in the workplace. Additionally, just because website postings are directed to friends, it does not mean strangers do not have access and cannot see what was posted. And even if information is deleted, deleted data can be retrieved by computer experts. Such data may mean the difference between winning and losing a case.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088.
( Published on July 25, 2009 in Asian Journal Los Angeles p. C3 )
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