The latest high-tech crime fighting tool for the La Crosse, Wisconsin police department is Facebook according to the “La Crosse Tribune.” The department recently used pictures from Facebook to charge students from the University of Wisconsin — La Crosse aged 19 and 20 for underage drinking. I guess La Crosse is a quiet town without a lot of serious crime so the police have lots of time to go looking for trouble. Tax authorities in the U.S. and Belgium have also used Facebook in their investigations. Just more proof that what you do online does matter.
Here’s some more information on the iPod lawsuit from the “In the eyes of the law” blog by attorney Kimberly Houser. The question phrased by Ms. Houser is whether “blogging is better than going to court?” I don’t know about that. Certainly, that may the best approach for small slights or questionable business practices.
There have been a number of instances where I did my best for a client by keeping them out of court. A classic example of this was the engineering client who was wronged by a major national home builder. The client was ready to sue, but my initial question was whether the client wanted to keep or lose their relationship with this major company. Of course, the client wanted to keep it and we adjusted our approach accordingly. The end result was the major company admitted the error of its ways and continued to do business with the client. That’s a result that I can take pride in. However, there are other times where the client wants “just a letter” or where they want to negotiate, but my experience tells me that it will clearly be a waste of time. In those cases, time and money can actually be saved by just getting down to the inevitable.
The Federal Ninth Circuit Court of Appeals in San Francisco is often described as the most liberal Federal appeals court in all the land. Thus, it would normally be considered pro-plaintiff in most cases. Nevertheless, Engadget reports that it recently upheld the ruling of a lower court dismissing a class action suit against Apple for iPod related hearing losses. Perhaps the class representatives weren’t aware that iPods do come with adjustable volume settings. I’m not sure that my son is aware of that. It is always a bad sign if the ear buds are in and you can still tell what someone is listening to.
If you’re tempted to hide evidence, don’t do it, especially if that evidence is digital. Even before the prevalence of digital evidence chances were that you’d be discovered. Multiple copies are often floating around, especially with medical records. Details are often missed that show a document is missing or altered. Not only is it likely to fail, but when you’re discovered you’ll be in an even worse position. There will be no doubt that you’re a liar and everything you say will be tainted.
This story from “The Globe and Mail” details just how futile it is to try to hide digital evidence. When you “delete” a file, you’re really only deleting the reference to it in a database, but the data referenced is still on the hard drive. It is forgotten but not gone. Forensic software can read that data. Trying to cover your tracks by overwriting the hard drive just shows that you’re trying to hide something.
Texas lawyer, Jeff Rasansky, gives some sound advice on managing your social networking in the event that you become involved in a lawsuit. Although written in the context of his personal injury practice, this advice pertains to any lawsuit. If you’ve read some of my other posts, you already know that your online image can affect your case, including even a landlord/tenant case. An opposing lawyer or client can find out more about you in 2 minutes for free than thousands of dollars and hours of private investigator time would have revealed just a few years ago. Right now Casey Anthony’s online trail is playing a major role in the investigation into her daughter’s murder as well as influencing any potential juror pool.
Of course, my preference would be for you to properly manage your online image to create a positive impression of yourself from the beginning, as I describe here in “MySpace Can Help Your ‘Case’ Too.” However, if all else fails and you find yourself embroiled in a lawsuit, Mr. Rasansky offers some good advice for how to manage your online postings. Step one is no matter what kind of case you’re involved in, let your lawyer know if you maintain any social networking sites or any personal websites. Step two is to Google yourself and see what comes up. Other people may have posted things about you that you are not aware of. Step three is to adjust privacy settings as necessary, delete as necessary, and quit posting or control your posting to create a positive image.
I’ve written before about the dangers of online postings. A little self censorship is a good idea. Now it seems that your Facebook status can get you out of jury duty too. All one juror had to do is set his Facebook status as: “Barry Price is sitting in hell … aka jury duty.” It seems that a paralegal for the plaintiff’s attorney in the multi-million dollar lawsuit for which Mr. Price was a potential juror was checking the Facebook pages of the jurors. He complained to the judge and it was buh-bye Barry. I’m not sure that should have been enough to get him excused for cause, but it was a high stakes, high profile case.
A juror in England, however, engaged in some egregiously improper conduct. Jurors are forbidden from discussing cases outside of court while the trial is going on. In fact, they cannot even discuss it among themselves until all the evidence is presented. They are supposed to base their verdicts solely on the evidence presented and to not consider outside factors or influences. They are not allowed to view any news about the trial if it is in the papers or on television. So what does she do? She posts details of the criminal sex abuse case online and then polls her Facebook Friends for their opinions. She was, of course, dismissed from the case when her misconduct was discovered. She was lucky not to have been held in contempt of court.
I’ve blogged before about electronic discovery in the context of divorce cases . Cell phones have been used to track parents in cases involving the disappearance of children. Automobile mounted GPS devices, which are less ubiquitous but getting more common every day, are also being used to pinpoint a person’s exact location at a particular time after the fact. In researching this post, I found a Yahoo group, GPSForensics.org, devoted to GPS forensics and a Forensicswiki article. Here’s an article from the Associated Press about how prosecutors are using histories from dash mounted GPS units to track the suspect’s movements at a particular time. Detectives can extract histories of map searches and destinations entered into the GPS. Some units have a “track back” feature that shows exactly where the unit was at a particular time. In a page from James Bond, the police have used GPS trackers hidden on suspect’s vehicles to track them.
If you’ve ever seen “Goodfella’s”, you may recall a paranoid Henry Hill driving around town while he watches for helicopters overhead that he believes are tracking him. Now all the FBI would do is stick a small GPS device on Henry’s bumper. Agents could track him from the office via computer. Any agents actually keeping tabs on the suspect would only need to be within a few blocks. Pretty amazing.
Blogger Nathan Smith speculates that GPS could be used to control the post-release location of convicted criminals. That is, as a condition of probation, child predators might have to wear a GPS that would alert law enforcement when they go near playgrounds, schools, daycares, or other likely locations for children. DUI offenders might be barred from liquor stores and bars or a GPS in their car could even be used to notify law enforcement of “excessive weaving” or other erratic driving that might indicate drunkeness. Big Brother really would be watching you.
Of course, I don’t practice criminal law. So what does this have to do with civil cases? This type of evidence may already be in use for divorce cases and the like. I sometimes handle cases involving construction. Often a bone of contention will be how often the contractor was on the job site. The owner will say the construction was delayed because the contractor was “never there.” The contractor will swear he was there almost every day, but it was always while the owner wasn’t present. If the contractor’s vehicle is GPS equipped and if it stores a long enough history, then it might be used to prove exactly how often the contractor was actually at the job site. Likewise, an employer might use GPS to determine if an employee was slacking off. This kind of evidence could be used in any case where location is a material issue and disputed.
The fact that your GPS keeps information such as your home and work addresses may be a problem even if you’re never involved in a lawsuit. According to ConsumerTech, personal information may be available with the right tools even if you’ve reset the device to its factory original state.
All rights reserved: Harry Thomas Hackney, P.A., 2008