Last updated: February 20. 2013 12:07AM - 1228 Views

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WILKES-BARRE – Dressed in a blue fur coat, white fedora and sunglasses, Ted Kalinowski lounged leisurely across a bar stool as someone snapped a picture.

The photo, taken at a Halloween party in 2007, had graced the public portion of Kalinowski's Facebook page for years – a lighthearted testament to fun times he's had with family and friends.

He didn't know it then, but five years later the snapshot would become the focus of a legal battle in Luzerne County Court.

Defense attorneys for an insurance carrier argued the photo was evidence that Kalinowski, who was seeking damages for injuries suffered in a car crash, was not as seriously hurt as he claimed.

Suspecting they would uncover other information, they asked a judge to order Kalinowski to turn over his Facebook password so they could access other, private areas of his site that can be seen only by his friends.

Facebook as evidence

His case is among a growing number nationwide in which attorneys have turned to cyber-sleuthing in hopes of uncovering evidence to support their positions, attorneys say.

People who file lawsuits have to be absolutely aware: What they put on Facebook may come back to haunt them, said attorney Robert Panowicz of Wilkes-Barre

Panowicz, who specializes in insurance company defense, said the number of local requests to access information on social media sites has mirrored the national trend. Last year we had four or five instances of people putting information on Facebook that was obtained as evidence in lawsuits, he said. Up until three or four years ago, we had none.

Facebook hunting is attractive because it provides a one-stop-shopping center for information on a person's life, attorneys say.

Facebook has become a repository for our lives. It has all these recordings of our interactions with other people, said Eric Goldman, a law professor at Santa Clara University in California. We have a very juicy, well-organized source of evidence.

The degree of information available to the public depends on a user's privacy settings. Many users allow access to a certain amount of information, such as their hometown and workplace, but other details, including the posting of comments, are reserved for only people they know.

Privacy debates

The legal debate centers on those private portions of a person's page.

Proponents for access say it's a legitimate avenue to seek relevant information. But others argue it is an unnecessary intrusion that tramples privacy rights.In Kalinowski's case, a Luzerne County judge denied the defense motion. Courts in other parts of the state and nation have split on the issue, with some granting access, while others have denied it.

Panowicz contends private Facebook pages should be open to discovery. Gathering information there is no different than using other, more traditional means to obtain evidence, he argues. People write 20 friends on Facebook, then complain because (attorneys) got information from Facebook, he said. You opened the door. I don't have a whole lot of sympathy for privacy in that respect.

But Goldman, who specializes in Internet law, said he believes courts are overreaching in allowing attorneys unfretted access to social media sites, and in some instances, emails. There is a balancing act here, said Goldman. On one hand parties are entitled to all relevant evidence from their opponent. On the other hand, the way we are getting that information is giving the courts fits.

By law, parties in civil litigation are required to provide their opponents with any information that could be deemed relevant to the case. Attorneys also obtain information in other ways, including subpoenaing medical records and taking testimony from the litigants.

The way we normally do it is we send the opponent a letter saying ‘tell me everything that's relevant to my request,'  Goldman said. Now they're saying, ‘I don't want you to tell me everything. I want to find it myself.'

That creates serious privacy issues, Goldman said.

It's like telling every litigant to hand over the keys to their house and let the opposition root through, looking for relevant evidence, he said. That's so far beyond what we consider acceptable.

Third-party issues

Granting access to a person's private Facebook pages also intrudes on the privacy of people who have posted to that person's site, Goldman said.

There's concern for third parties who are not the litigants, he said. There may be private messages. The opposition sees that information as well.

In Kalinowski's case, Joan D. Daly, attorney for the National Indemnity insurance company, argued the fedora picture of Kalinowski contradicted his statements that a back injury caused him so much pain it limited his ability to engage in the normal pleasures of life.

Based on plaintiff's choice of attire, it can be surmised that he is attending a costume party, Daly said in legal brief. Attending costume parties and lounging comfortably (on a) barstool contradicts plaintiff's assertion … that he cannot sit or stand for more than 20 minutes due to pain.

Kalinowski's attorney, Ann O. Farias of Kingston, argued Daly's request was based on nothing more than innuendo and speculation. She noted Kalinowski could prove the photo in question was taken in 2007, two years before the car crash.

Panowicz said he understands concerns that attorneys might use social media as a fishing expedition, but he believes the courts can easily address those issues by conducting an in-camera review – a legal procedure in which a judge privately reviews information to determine if it's relevant to a case.

That way you are not giving them ‘the keys to the house.' There will be a guard at least at the door – the courts, Panowicz said.

Goldman said he'd like to see the court system go a step further and develop reasonable limitations on when information from social media is, or is not, relevant. The bottom line is, we have to have a definitive opinion come from the courts about the legitimacy of access to social media accounts, he said. It's a question that is very much unresolved. I hope we come to a reasonable and sensible solution.

In the interim, Farias cautioned that people need to be wary of what they share online.

Social media has taken off in such a big way, people forget: it's not as private as they think it is, she said.

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