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Tort Defense Lawyer Contends MySpace Smiley Faces Are Damning Evidence

Posted Jan 28, 2011 7:55 AM CDT
By Debra Cassens Weiss

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Tort defense lawyers are increasingly seeking access to plaintiffs’ private social media pages in hopes the contents will provide evidence of fakery.

Two state courts recently granted broad access to private portions of social media sites, and a federal court did the same in 2009, Reuters reports. In one of the cases, a defense lawyer allowed access to private posts had claimed that smiley faces and talk of a vacation show a tort plaintiff is happy and mobile.

In September, a New York judge granted lawyer James Gallagher access to the private materials in a personal injury suit filed over a fall from an office chair at work. Gallagher had argued that MySpace smiley faces posted by plaintiff Kathleen Romano are evidence of happiness, and talk of a Florida vacation by her daughter indicate Romano isn’t homebound.

“We figured something smells here," Gallagher told Reuters, "and we wanted to see what else was in there."

Facebook has filed a motion arguing that defense lawyers should obtain the material directly from Romano rather than a subpoena to the website, the story says. Gallagher plans a different tactic being used in cases like this one: asking the judge to order the plaintiff to sign a consent form granting access to the material, which will be attached to a subpoena.

Other defense lawyers are interested in the case. Gallagher told Reuters he has gotten about a dozen requests for his legal briefs. "This is a wave that is going to explode all over plaintiffs' law," he said.

Prior coverage:

ABAJournal.com: “Plaintiff Must Provide Access to ‘Private’ Facebook & MySpace Pages, Judge Rules”

ABAJournal.com: “Gumshoes are Now Glued to Internet as They Search for Adverse Insurance Information”

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