In line with consumers’ expectations, social networking website Facebook offers privacy settings that seem to allow you to make some of the information you post – including photos and comments – accessible only to people you choose.  But recent court decisions suggest that some or all of your “private” Facebook postings may lose their private nature once you become a party to a lawsuit.

In California, the right of privacy generally yields to another law, which permits all parties to a lawsuit to seek and obtain information, called “discovery,” from the other parties.  Discovery is all information that is relevant to the subject matter of the lawsuit, plus information that is reasonably calculated to lead to the discovery of admissible evidence. The purpose of discovery is to allow each party to evaluate the merits of all the contentions, and to prepare their own case for trial. 

There are only a few limited situations where the constitutional right of privacy partially outweighs the right to discovery.  Items like employment records, tax returns, personal financial records, medical records, and other highly confidential records cannot be discovered simply because they are generally relevant to the lawsuit, or likely to lead to the discovery of admissible evidence.  Instead, these confidential records can only be discovered if they are “directly relevant” to the lawsuit – likely to help prove or disprove a material fact in dispute.

The problem with trying to prevent other parties to a lawsuit from discovering your “private” Facebook postings is this:

1.  Some of your profile information – your name, photo, age range, locale, and gender – is always publicly available because Facebook makes it public.  The opposing party in a lawsuit will therefore know if you have a Facebook account.

2.  Any of your Facebook friends can put a photo of you or comment about you on their own page and add a link from it to your profile.  Although you can remove the link, you can’t remove the photo or comment from another person’s page.  Also, if you post a comment on someone else’s page, they can choose to make it publicly available.  This means you can’t entirely control what photos and comments about you are publicly available on Facebook.

3.  These photos and comments on other persons’ pages can often be uncovered by the other party (or parties) to your lawsuit by combining diligent searches of numerous Facebook accounts with investigative techniques that allow the other party to identify your friends, your neighbors, your work associates, and various public locations you visit.

4.  Information that is constitutionally protected as private and that can be discovered only if it is “directly relevant” to the lawsuit is typically specific, limited, highly personal material you have confided only to someone who has a legal duty to protect that information from public view – for example, your attorney, your religious advisor, your physician, or your employer.

5.  People who have become your “friends” on Facebook do not have that responsibility towards you, and the fact that you share information with them but not with the general public is probably not enough to prevent that information from being discovered in a lawsuit.

Recent cases from other states suggest that courts will likely be inclined to allow parties to a lawsuit to discover a variety of supposedly “private” information another party has shared with friends via Facebook.  

In one case, a New York court ordered a woman accident victim to give the defendant access to her private Facebook postings after the defendant found public Facebook photos showing the woman engaged in an active lifestyle that would not have been possible if she had actually suffered the injuries she claimed. The court said that as a party to a lawsuit, the woman could not “hide relevant information behind self-regulated privacy settings” on Facebook.   

In another case, a Connecticut court ordered a divorcing couple to share their Facebook usernames and passwords with each other, and ordered them not to delete information already posted, after one spouse claimed the other’s “private” postings would likely show the other spouse’s lack of fitness for custody over the children.

In a third case now pending, defendants in a New York inadequate-security lawsuit are seeking access to the shooting victim’s private MySpace and Facebook postings, after her lawsuit claims of great trauma and resulting fear of crowded spaces were contradicted by public photos of her at a concert, and her own public posts that she was having “so much fun doing everything.”

The bottom line:  if you have a Facebook or other social networking account, or your friends, neighbors, or work associates have one, a great deal of information about you is likely to come out in a lawsuit.  Even when you have fulfilled your legal obligation to tell the truth, social networking information may be used by the other side to support their version of events, which may be mistaken or even intentionally exaggerated.  You’ll need to be prepared for this possibility and to discuss it frankly with your trial lawyer.

The trial attorneys at San Diego Law Firm have years of experience in handling all types of disputes, and are very knowledgeable about social media such as Facebook, Twitter, LinkedIn, and other popular networking resources.  We are used to handling difficult, highly personal information in lawsuits ranging from accidents, to business and real estate disputes, to divorce, to probate, and to numerous other types of cases.  If you need an experienced trial attorney to handle your dispute, please call us at (619) 794-0243 to schedule a consultation.  We can help you.

An injunction is a court order that requires someone to either do or not do something.  For example, if your inheritance rights are in jeopardy because of something a personal representative is about to do, then you might be able to ask for an injunction to prevent the transaction. 

If you’re a business owner, then what would you do if another business was using your trademark (such as your business’s name or logo)?  If you need to sue, would it be enough to ask for only money?  Would a money judgment stop the competing business from using your trademark?  Maybe, maybe not.  That’s why you would probably ask for an injunction that specifically orders your competitor to stop using your trademark. 

Without an injunction, there are many situations where you’d be stuck having to sue someone over and over again because that person could continue violating your rights.

Do injunctions last forever?

Some types of injunctions that are temporary.  If there’s an emergency you may be able to get a temporary injunction that will last only until the court is able to make a final decision on the case. 

Even if you get a “permanent” injunction at the end of a trial, sometimes it can modified later.   An injunction can even come with an expiration date.

When can you get an injunction?

A request for an injunction isn’t taken lightly and not every case will qualify for one.  To get a temporary injunction while your lawsuit is pending, here are some of the main things you’ll generally need to prove: 

      1.  That monetary compensation wouldn’t be enough in your case

      2.  There’s a big enough threat that you’ll suffer permanent harm if the injunction isn’t given

      3.  You’ll very likely win the case

      4.  You’d suffer more harm if you don’t get the injunction, compared to any harm the defendant would suffer if are given the injunction

If you believe your rights are being violated and that monetary compensation isn’t enough in your case, we’ll evaluate your chances of getting an injunction in court.  This may be the best way to protect your rights, or prevent future lost profits.  Get the legal help you need from an experienced attorney by contacting San Diego Law Firm’s at (619) 794-0243.

The lawsuit itself is officially started by filing a “complaint” that’s prepared by the plaintiff’s attorney after investigating the facts and researching the law that applies to the case. The complaint will set out the legal grounds for the lawsuit against the defendant and make a request, such as for monetary compensation.  This document, together with a “summons” that orders the defendant to respond to the claim, will be delivered (“served”) to the person being sued. After being served, the defendant’s lawyer must act quickly and within the deadline to respond to the lawsuit and can take different actions depending on the situation.  For example, the defendant can file an answer to the complaint, object to the complaint because it doesn’t state a legal claim, raise defenses, and may even have his or her own claim against the plaintiff.  If so, the defendant’s attorney will file a counter-claim, called a “cross-complaint” in California state courts, to which the plaintiff will have to respond.  If there’s a legal basis for it, one party can also try to get a judgment on the case (or part of it) without a trial, or get the case dismissed. 

The attorneys will also begin “discovery,” which allows more investigation tools to be used so the parties can prepare or defend against the lawsuit.  A few of the most important ways to gather evidence during discovery include interrogatories (written questions prepared by the lawyer that have to be answered under oath), depositions (questions that will be answered orally under oath), and orders for the other party or subpoenaed third parties to produce documents and photos.  Throughout the process, lawyers will meet with the judge for conferences on the status of the lawsuit.  Before the trial is set, the question will come up on whether there will be a jury trial or a bench trial (where a judge will decide your case).  Depending on the lawsuit, you may have a right to a jury as long as a request for a jury is made within the time required, but sometimes the parties may want to waive this right and have the case tried by a judge.  If not, then a jury will be selected.  Then, attorneys for both parties will go through all the typical steps in a trial, i.e. opening statements, examining and cross-examining witnesses and experts, and presenting closing arguments.  During the trial, either side may continue to try to cut the trial short and get a judgment in its favor.  If the trial continues, lawyers will prepare jury instructions for the court’s approval.  Jury instructions explain the laws that jury members must apply to the case (in other words, the specific things that must have been proven), and the judge will read approved instructions to the jury.  After jury deliberations, or after the judge has reached a decision in a bench trial, the verdict will be read.  A party might decide to challenge the judgment with a post trial motion, or by filing an appeal. 

While it’s easy to focus on what lawyers do during a lawsuit, we’ll also advise you on what you can do from the start to help improve your chances of winning.  For instance, it’s key that you tell us not only everything that can help your case, but also anything that has the potential to hurt it.  Also, be careful to provide complete and accurate answers to interrogatories and during depositions, because dishonest answers are usually caught later and can significantly damage your case.  Your credibility and truthfulness will influence the judge or jury’s decision as they weigh the evidence in your case.  In doing our part to maximize the likelihood of success, we’ll identify your goals with you, thoroughly investigate your case, and persuasively negotiate with the other side.  Although we’ll strive for settlement from the outset, we’re fully prepared to litigate your case in court.  If you’re faced with a legal dispute, act quickly so that you don’t lose your right to sue or defend a case because you’ve waited too long.  Reach San Diego Law Firm’s experienced trial lawyers at (619) 794-0243.

The court of appeal will review the trial court’s decision by applying different legal standards, and these can give a great deal of deference to the trial court’s decision, making things more difficult for the party who’s appealing.  Which standard is used will depend on the circumstances of your case, including whether your case was decided by a judge or jury.  For example, two common standards of review are abuse of discretion and substantial evidence.  The details of these standards of review can become complex, but essentially the abuse of discretion standard is applied if you’re challenging discretionary decisions that a judge made, and abuse will only be found when the decision is clearly unreasonable or arbitrary.  When the appeals court is reviewing the factual conclusions made by a judge or jury, then the substantial evidence standard is applied instead.  This means that the court of appeal will be looking to see whether it’s possible that a reasonable person looking at the facts could have made the same factual finding as the judge or jury made.  No matter what standard has been used, in the end the appeals court will decide to either let the trial court’s judgment or ruling stand; modify it; or reverse the judgment or part of it, in which case the lawsuit is often sent back to the trial court for retrial or with other instructions.

Before any potential appeal is begun, it might also be possible to challenge the decision by filing a “post trial motion.”  These after trial requests are not appeals, so the motion will be heard by the trial court, not the California Court of Appeal.  Typically, a post trial motion must be made very soon after the judgment.  Two of the better known post trial motions are a motion for judgment notwithstanding the verdict (JNOV), and a motion for a new trial.  When requesting a JNOV, you ask the judge to enter a judgment in your favor, in spite of a jury verdict that says you lost.  As you can imagine, this is an extreme request.  For that reason a JNOV will only be granted when the jury’s verdict isn’t supported by sufficient evidence, which shows that no reasonable jury could have come to its decision.  On the other hand, the reasons behind a motion for a new trial often revolve around claims of tainted court proceedings.  Here, you may argue that there was misconduct on the part of the jury, that the amount of money awarded was either too little or excessive, that there’s new evidence that couldn’t have been discovered before trial, that there was an irregularity in the proceedings, and so on.  When this results in a miscarriage of justice, the judge can order that your case be tried again.  If you don’t succeed on a post trial motion, we’ll assess whether you meet the legal requirements to file an appeal and evaluate its merits so you can decide on your best course of action.  As attorneys experienced in both litigation and appeals work, we’re prepared to pursue your appeal and can handle the appeal even if you had a different lawyer at trial.  After careful and detailed research, we’ll persuasively present your appeal through written briefs and oral arguments, or diligently defend against the appeal if you were the winning party at trial.  There are strict deadlines to file an appeal that generally expire soon after the decision in your lawsuit is made, so avoid any delay and contact San Diego Law Firm at (619) 794-0243.