Swabbing the Decks of Admissibility

Working as a deckhand can be extremely dangerous. There are plenty of reality TV shows with fishermen, tugboats, and salvage crews to highlight the risks professional mariners face daily.

tugboat

What is also risky in litigation is posting on social media information that could hurt your case.

In Newill v. Campbell Transp. Co., a former deckhand brought motions in limine to limit social media evidence and other testimony in what apparently was a trial over a shipboard injury.

Red Skies in the Morning

The Plaintiff attempted to preclude the Defendant from introducing Facebook posts that showed the Plaintiff could engage in physical activities, despite his claimed injury. Newill v. Campbell Transp. Co., 2015 U.S. Dist. LEXIS 4350, 1-2 (W.D. Pa. Jan. 14, 2015).

The Defendant sought to introduce Facebook posts that the Plaintiff engaged in “painting, landscaping, flooring, going to the gym, undercoating a truck, and going physical.” Newill, at *2. The Plaintiff further offered his skills as a handyman on social media. Id.

The Court held that the Facebook posts that reflected physical capabilities that were inconsistent with his claimed injury would be allowed at trial. Id. However, if during the trial the Plaintiff felt a social media exhibit was overly embarrassing, the Plaintiff could challenge that specific post under Federal Rule of Evidence 403 at that time. Newill, at *3.

Red Skies at Night

The Defendant had a witness [presumably an expert] who was to testify that the Plaintiff’s Facebook posts “probably [were] not giving the employers a good impression,” was simply speculation and thus not admissible. Newill, at *4. This might have been different if there was some evidence that the connected the Plaintiff’s employment status to his social media posting, but none was offered. Id.

Bow Tie Thoughts

I am an Evidence geek. Love it as much as the Rules of Civil Procedure. The difference is Evidence goes to the heart of a trial: What is admissible?

There are many attorneys who think of social media as an epic “gotcha” game with the opposing party. There is no question that the cases where someone who claimed a back injury has posted Facebook video of themselves riding a mechanical bull riding is highly relevant to the lawsuit. However, the fundamental issue with any social media post is it must be relevant to the case. If the information is not relevant, then it is inadmissible.

This case shows an interesting mix. Posts that were relevant to the case could be used at trial, but the Plaintiff could challenge them under FRE 403. Alternatively, testimony that was purely speculative about the Plaintiff’s posts precluding him from getting hired for another job was not admissible.

As with any evidence, ask is this social media relevant to the case? Is there a casual connection to what is trying to be proven? Performing such analysis should help save time conducting document review of social media in discovery.

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