Facebook and Right to Privacy


Most of us use Facebook or other forms of social networking.  We put up cute pictures of ourselves, our pets and our family members.  Most of us even go through the trouble of marking some of our postings private in the hopes that they don’t fall into the wrong hands.  However, does private really mean private?

According to a decision by the New York Appeals court on October 27, 2011, Paterson v. Turner Construction, an employer does not have the right to see all that is on an employee’s Facebook account, but not because it’s private, because the demand by counsel was not specific enough when making demands for production in order to build the case.

The postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access (Romano v Steelcase Inc., 30 Misc.3d 426, 433-434 [2010]), just as relevant matter from a personal diary is discoverable (see Faragiano v Town of Concord, 294 A.D.2d 893, 894 [2002]).

It appears that when you sign up for Facebook you sign an agreement that states that although you may mark your documents private the chance of them coming into the public domain is not unforsseable.

In a 1967 case of Katz v. United States of America the court opined that fourth Amendment’s right to privacy “protects people not places.”  Keep in mind that the internet is a place and as such it is not protected by the Fourt Amendment’s Right to Privacy according to the Katz court.

As paralegals we all know what it’s like to draft a demand for discovery.  Sometimes you just know that if you can get your hands on such and such document you will be able to find what you need.  You go ahead and request everything under the sun.  Well, here it appears that the court is saying that, although you may have the right to the discovery you are requesting, make sure you are not going on a fishing expedition.  Make sure you know what you’re looking for and that you have a reason to request what you’re requesting.  Fishing expeditions are burdensome to everyone and no one wants to waste time going through documents that will lead to absolutely nothing.

So, for us paralegals there are two things to take away from this decision:  One in my opinion is more a professional matter and the other is more of a personal matter;

  1. Make sure that when you are drafting your demand for production of documents you know why you’re asking and that what you’re asking for will provide you with the information you are seeking.  Formulate your requests in a manner that will make allow your adversary to provide you with the documents you need without wasting yours and your adversary’s time; and on a personal note;
  2. Remember that just because you post something on the internet and marke it private – Privacy is really not privacy.  Once in the public domain (internet) it becomes public whether or not you set up your privacy settings.

Just as a reminder, I am not an attorney.  The above are just my opinions and my review of the court’s decision.  Nothing in this article or any of the articles by The Paralegal (me) should be construed as legal advice.

And on that note, I hope you enjoy my articles and take a minute to subscribe and check out the other blogs I read on a regular basis.  Let me know what you think.  I really enjoy reading your comments and try to respond to all of them so why don’t we have a chat?

Procrastination


A plaintiff’s lawyer who repeatedly dragged his feet on discovery and missed deadlines in a federal employment case has been hit with a $13,410 fee sanction that he must pay himself.  New Jersey Law Journal, May 6, 2010

No disrespect but my first thought was “did this plaintiff’s lawyer have a paralegal?”  Just a thought.

Paralegals and Depositions


Many experienced paralegals sit in on depositions not to ask questions but to take notes and assist the attorney in “reading” the witness.  By this I mean; while the attorney is asking questions, usually prepared questions, the paralegal’s job is to take notes about what the plaintiff answered as well as pay close attention to the demeanor of the plaintiff while answering the questions.  Is the plaintiff fidgeting?  Did the plaintiff say something “new” something that was not mentioned during is responses to discovery?

The attorney’s job is to ask questions, follow up on original questions in order to get additional information out of the witness when the plaintiff’s answer is vague, and pay close attention to what is being said so that he or she can object or follow up with another question.  The paralegal’s job is to scan the room constantly and keep a close eye on the witness and the adversary attorney(s).

As a paralegal, one of many suggestions to you, is to learn to take very good notes and learn to interpret non-verbal communication.  Those two skills will make you an invaluable member of your legal team.

As an example: A few years ago I was sitting in a deposition with my managing attorney.  We were deposing a plaintiff in a personal injury matter.  During the initial discovery process of the case we had been getting medical information from the plaintiff by using the social security number he had provided us with his answers to interrogatories.

During the deposition the attorney asked the plaintiff for his social security number.  When I heard the number, it didn’t make sense to me.  I made a note of it and while the attorney continued to follow his line of questioning I took a look at plaintiff’s answers to interrogatories. I noticed that the social security number we had been provided was different from the one plaintiff was giving us at this time.  During one of the deposition breaks I informed the attorney. When we got back to the deposition the attorney was able to question plaintiff regarding that other social security number and we found out that the plaintiff had come to the country illegally and received an illegal social security number.  When he obtained his legal status he received the legal social security number.

After the deposition I went back to my desk and, after speaking with the attorney, I sent out requests medical records.  However, I used the new social security number. A few weeks later I received the new medical records informing us of a completely different accident.

We were able to show that the injuries of which plaintiff was complaining were pre-existing conditions and the plaintiff had been involved in an earlier personal injury action which he settled a few years before ours.

I’m not saying that the attorney would not have been able to pick this up at some point.  However, because I had all the documents with me and was taking notes, the attorney was able to concentrate on his line of questioning and put the witness at ease by making eye contact.

The witness had no reason to believe that we had just caught him in a lie because the attorney’s demeanor did not change and the attorney did not have to take  time out to write anything down which would have caused the witness to be able to “recover” from the lie or think about an excuse.

Make sure you work on your note taking skills.  It sounds like a boring task but it can be invaluable to your attorney.

Discovery


What is Discovery?  “A formal procedure established by the Federal Rules of Civil Procedure and corresponding state procedural rules in which parties to a lawsuit exchange information and documents in an effort to “discover” facts relevant to the lawsuit and identify potential witnesses and evidence.” [1]

The majority of litigation paralegals spend most of their time in the pre-trial stage of litigation.  There are two distinct stages of pre-trial discovery, the informal discovery stage and the formal discovery stage.  The formal discovery stage is also divided in two separate stages, the written and the “verbal.”  For purposes of this particular blog post I will concentrate on the written and will go on to the “verbal” portion of the discovery period in another post.

Informal Stage

Prior to the case being filed and in order for the attorney to decide if and how to bring the case to court, i.e. file the complaint.  You will be tasked with coming up with the preliminary information on the facts of the case.  In order to do that you will need to focus on the following:[2]

1) Locating and taking statement from potential witnesses;

2) Photographing and/or documenting the accident scene;

3) Locating, collecting, and preserving physical evidence; 
and

4) Photographing plaintiff’s injuries.

5) Newspaper articles;

6) Legal research on other similar incidents or claims;

7) Internet research to locate information on other similar incidents or claims;

6) Corporate searches and look-ups.[3]

Depending on what you come up with during the informal stage of discovery, and after meeting with the client and the attorney to figure out a strategy, the case can be filed in court.  The paralegal can, and some more experienced paralegals do, draft the complaint for attorney review.

Once the complaint is filed and the defendant files and serves his/her answers to the complaint the formal discovery period starts.

Formal Stage

A good paralegal must be very organized and able to stick to a very tight time frame.   At first glance, it looks like you will have all the time in the world to get the discovery done and the files organized prior to settlement or trial.  I know it’s easy to fall into that trap.  But believe you me, “time flies when you’re having fun

The defendants will serve you with Interrogatories, Document Demands and requests for admissions.  All of these have a time within which they must be answered.  Make sure you look up the Rules in your particular state for the response time. Additionally, you will be serving discovery (interrogatories and document demands).

During your review of defendant’s answers to discovery, you must pay close attention to make sure the defendant completely answered your discovery demands.  If you find that their responses don’t fully give you the information you need you need to discuss with your attorney if you need to file a motion for more specific answers or if a letter to your adversary will suffice.

You should get into the habit of keeping track of all dates and deadlines in each particular case so that a deadline is not missed and also to make sure that your adversary answers your requests on time.

When working on very large cases, I got into the habit of keeping discovery binders for each party.  I found that by being organized from the beginning of the case made it easier at the time of trial. It may also be a good idea to keep a different color binder for each of the expert sides.  In my case, I kept a red binder for the plaintiff’s expert witnesses and a blue binder for the defense expert witnesses. When it came to trial time these colors were very easy to spot in the box of documents that I normally carried to court.


[1] http://legalcareers.about.com/od/glossary/g/Discovery.htm

 

[2] The example being used is a plaintiff personal injury case.

[3] This can be helpful in the case of a slip and fall case.  You need to find out who owns the property.