Social Media Discovery of Products Liability Issues

As you know, we here at Abnormal Use sometimes contribute content to other publications, and this week is no exception. Our own Jim Dedman saw the publication of his “Social Media Discovery of Products Liability Issues” piece in the most recent issue of DRI’s Strictly Speaking (for which Jim happens to serve as editor). Here’s the first two paragraphs:

Much has been written about the value of investigations into the social media presence of Plaintiffs in litigation. However, such advice typically centers upon the potential discovery of statements or photographs which contradict a Plaintiff’s testimony about his or her damages. Many a diligent practitioner has located compromising evidence which impeaches a Plaintiff’s testimony as to his or her purported injuries or limitations. Practitioners should also consider expanding the scope of their social media discovery efforts to include a Plaintiff’s online commentary regarding the use of the underlying product in products liability cases. These days, in an era when individuals offer online commentary about the most minute details of their lives, take photographs of their meals in order to post such images on Instagram, or share with their online communities their latest purchases or experiences, there is an increasing likelihood that such individuals may have commented about the purchase or use of the products being litigated.

In a recent case, a Plaintiff spent considerable time and energy excoriating a product which she felt caused her damages. Specifically, in this products liability case which resulted in flooding and damages to the home, the Plaintiff utilized Twitter, Facebook, and a personal blog created solely for the purpose of exploring her damages related to the product and her home. Over the course of multiple blog posts, the Plaintiff attempted to portray herself as a burgeoning expert the types of injuries she claimed to have suffered. These posts were at least initially difficult to locate due to the fact that the writer had adopted a pseudonym of sorts, and thus, they would not have been located but for diligent efforts. Certainly, although this particular Plaintiff created far more online evidence than a typical litigant, claimants still seem to forget the potential effect of their online remarks on their pending or subsequent litigation. In light of these issues, wise practitioners should search not just for social media profiles but also more specific commentary by a Plaintiff relating to the product. This can be done in several ways.

You can read the full article here.

U.S. Soccer Announces New Safety Initiatives: Just How Effective Are They?

In response to a class-action lawsuit filed last year against FIFA, U.S. Soccer, and the American Youth Soccer Organization, the United States Soccer Federation has announced a number of new safety policies to address head injuries in the game of soccer. As reported by The New York Times, the new regulations, which will be mandatory for U.S. youth national teams and recommended for other soccer associations beyond U.S. Soccer’s control, include the prohibition of players age 10 and younger from heading the ball. In addition, substitution rules will be modified (the specifics have not yet been announced) to help monitor players suspected of sustaining a head injury in the field of play. The announcement ends the suit filed last year in federal court in California by a group of players and parents concerned with the way soccer leagues monitor head injuries. The plaintiffs sought rule changes and not financial damages.

In this regard, we suppose the plaintiffs should proclaim, “Mission accomplished.”

We here at Abnormal Use fully support safety initiatives in sports. While we understand and support the intent of these new initiatives, we wonder how effective they will be. In regard to the unspecified new substitution rules, we again appreciate the intent. Assuming the new rule allows a temporary substitution while a team monitors a suspected head injury, the rule would theoretically encourage teams to pull the injured player off the field without playing a man down. Makes sense. But why should a head injury be treated differently than any other injury in this regard? Who monitors whether a player has a suspected head injury? What is to keep a player who injured a knee, but can’t leave the field without using one of the team’s three substitutions or forcing the team to play a man down, from saying he also hit his head and, thus, alleviating his team from the predicament? Maybe we are over-thinking this (as usual), but it seems a rule like this could cause more difficulty than good.

The bigger hole with substitution rule (again, assuming it is for a temporary substitution), though, is that it doesn’t address a fundamental principle in all sports – players want to be on the field. Players at all levels, in all sports, often hide or minimize their injuries so they can continue playing. Sure, soccer players are aware of the current substitution rules and don’t want to put their teams at a disadvantage, but what they really want is to stay on the field regardless of whether there is or is not a sub. For this reason, we hope that the new rules have some measure of monitoring for suspected injuries or else they might not have much of an effect.

Prohibiting headers by young players is a noble idea. On the surface, what better way to limit head injuries than keeping kids from purposely striking balls with their heads? The prohibition, of course, would also seem to limit the number of mid-air collisions occurring between players leaping to head balls. This much is good. It ignores the fact, however, that soccer remains a contact sport. A contact sport where players do not wear protective head gear. According to the complaint in this matter, nearly 50,000 high school soccer players sustained concussions in 2010. That number is greater than the combined total of players in baseball, basketball, softball, and wrestling. We assume that only a percentage of those numbers were injuries sustained in the course of a header. Rather than simply forbidding the practice for youth (which will become an important part of the game as they progress through the ranks), why not consider head gear which will aid in all aspects of the game?

Ask the NFL how that has worked out.

Friday Links


“No matter what the jury decides, the secret empire demands death,” proclaims the cover of Marc Spector: Moon Knight # 17, published way, way back in 1990. That doesn’t sound like something you would find in the pattern jury instructions, does it? We do suppose, though, that if your name is Marc Spector then you are somehow destined to become a cryptic superhero.

Congratulations to our own Ron Tate, who was recently chosen to receive the Home Builders Association of South Carolina (HBASC) Thomas N. Bagnal Associate of the Year award. If you’re not already following Ron on Twitter, here’s your chance.

Speaking of social media, don’t forget that you can follow Abnormal Use on Facebook! Click here to do so.

Our favorite legal tweet of late concerns the famous monkey copyright case. Enough said:

Social Media Discovery – Timing is Key

Timing is everything in litigation. That’s certainly true in the discovery arena, even when dealing with the (still) relatively new field of social media.  Recently, Ernie Svenson a/k/a Ernie the Attorney wrote a fascinating post about the perils and pitfalls of subpoenaing Facebook for an individual’s social media profile and underlying private data.  According to Ernie, Facebook usually refuses to produce a meaningful subpoena response – the good stuff you’re hoping to get will likely not be in the company’s formal response. Accordingly, he offers some alternative approaches to obtaining that data through the formal discovery process. There’s not much to add to his very thorough post; but I would offer the following tips on timing such requests.

First and foremost, the investigating party should use informal means to capture or preserve any social media profiles on the litigant at issue.  There’s all sorts of articles out there on how to do just that. To this day, some users still maintain fully or partially public social media profiles (even after so many years of articles like these promoting social media discovery).  One can capture that data in a variety of ways, either by printing a PDF, utilizing a screen capture, video capture (if the case merits it), and/or saving the image files to one’s desktop in their original JPEG format for later usage.  Remember, too, to note the date, time, and manner in which the data was captured in case that information is needed later for authentication purposes.

It may be that your own informal searches and preservation will obviate the need for a subpoena to Facebook (which, as Ernie notes, will retain its own law firm to handle subpoena responses and ensure, as already noted, that your battle is costly and ultimately unsatisfying).  However, if you feel that formal discovery tools are still necessary, remember that when lawyers issue subpoenas, they necessarily alert their opponents to sources of relevant information. So, if you are going to tip your hand, and the case justifies it, the following is one potential approach.

To address all potential needs in one volley, you can simultaneously serve the following:

1) The subpoena to Facebook, using some of the helpful tips identified by Ernie in his post.

2)  Subpoenas to any other social media entities you have identified.  Once your opponent knows you are after social media data, it’s best to obtain all that you can in one fell swoop.

3)  Requests to admit seeking to authenticate the profiles you informally located.  In addition to the genuineness the profiles, you may also want to request that the litigant admit that he or she uses certain handles, user names, user numbers, or email addresses associated with the account.

4)  Interrogatories and requests for production seeking copies of the private areas of the social media profile.  As Ernie notes, you may wish to encourage your opponent to use the “Download Your Information” feature to capture all relevant data (although you should probably expect an objection that the information sought is irrelevant, overly broad, and unlimited in time).

5)  Supplemental responses to your opponent’s discovery to you.  It is likely that your opponent has served discovery requests that call for the information you have located.  Rather than resist that discovery, you may wish to supplement your responses to identify the data you have located (which you may already be producing in conjunction with your requests to admit).  This may assist you later if the court has any concerns about the profile data constituting an unfair surprise.

6)  Preservation letter.  In addition to the foregoing, you may wish to send your opponent a letter noting that you have identified this social media information and that you are aware of the likelihood of responsive imagery or text that is private which must not be spoliated.  You should go so far as to note that there can be consequences for spoliating social media data, just as there are for the purpose for inadvertent destruction of any evidence.

When one’s opponent receives the above volley of paperwork, he or she will most certainly be alerted to the fact that you believe that there is relevant social media data in the case.  But by serving all at once, you may protect yourself against potential spoliation of evidence (or at least preserve your ability to argue later that you advised your opponent to safeguard the data).

(This post was originally posted on the now defunct North Carolina Law Blog on November 16, 2011).

How To Blog: A Primer (And Not A Boring Primer, Either)

We  are often asked – sometimes even by interested coworkers – how to blog.  Good question. Sometimes they are legitimately curious, other times they just wonder how and why we do the nerdy things we do.  We’ve seen this question addressed on many a blog, but a good many of them miss the point.  The curious readers are not really asking how to create a blog, design a blog, or promote a blog, but rather, how to sit down and engage in the process of writing and editing a blog entry itself.  That’s the real trick, isn’t it?  How do you determine what to discuss on your blog?  Once you figure that out, the rest is easy.

When you think about it in detail, the quest for subject matter – blog fodder – is the easiest part of blogging. We’ve all got legal anecdotes, war stories, and opinions on issues large and small.  You can write not just about the latest cases, but about your legal pet peeves, awkward moments at depositions, and even our thoughts on the blog entries of other writers.  Really, any story you tell another lawyer at lunch or any minor tirade you embark upon as the result of an irksome legal annoyance is appropriate and good subject matter.  Anything you read in the news, anything you see in pop culture, or anything you encounter on the vast expanse of the Internet can prompt a post large or small, even if it only offers the tiniest connection to the world of law.

But even armed with an idea for a post, some would-be bloggers face a challenge in converting it into a proper blog post.  This, too, can be easy, if you approach the task in the proper way.  Lots of writers become discouraged with the idea of drafting a post. To them, blogging is the difficult task sitting down in front of a blank computer screen on a single occasion and then formulating an idea for a post, writing it, and editing it, all in one sitting.  Just as with a motion or brief, it’s stressful when you sit in front of a blank screen on the computer and know that you cannot get up again until you have finished a draft. There is a better way.  Bloggers should carry blog ideas with them and allow them germinate and develop in their minds before sitting down to write the post.  They can scribble notes on a legal pad, or if they have the ability and desire, dictate a rough draft of a post.  That way, when they sit down in front of their computer, they’re not facing blank screen but starting with a series of their own notes or even a dictated rough draft of the post.  This makes it much easier to complete the task – they’re not producing a post out of thin air but massaging earlier work product into a final post.

So there you go, would-be bloggers. Have at it.

(This post was originally posted on the now defunct North Carolina Law Blog on March 14, 2012).

NFL Player Has Had Enough of Daily Fantasy Sports Site Commercials (At Least One of Them)

If you are like us, you are a part of the growing number of people who are getting sick of the incessant commercials for those daily fantasy sports sites, FanDuel and DraftKings. Count Washington Redskins wider receiver Pierre Garcon as one of them. According to a report from ESPN, Garcon has filed a class-action lawsuit against FanDuel (but not DraftKings – more on that below).  The suit, filed in federal court in Maryland, accuses FanDuel of misusing players’ names and likenesses without proper licenses or permission.

To be fair, Garcon is not necessarily upset about the sheer volume of the commercials, but rather the frequency with which his name occurs in them. For example, in one 28-minute infomercial, Garcon’s name is seen 53 times. We assume the 53 times is more than overkill as Garcon would have taken issue with the use of his name even once.

This case is interesting on several fronts. First, this isn’t necessarily a case of a company fraudulently acting as if a famous person is endorsing its product.  While we admittedly have not seen every commercial or the 28-minute infomercial (thankfully), we have not seen an instance where Garcon’s name is being used in a manner that would even imply that he is a FanDuel supporter. Rather, Garcon’s name is used in examples of how the fantasy sports site operates. Users draft players like Garcon based on daily “salaries” contingent on the player’s statistics and value. As a decent player with decent fantasy value, Garcon’s name and statistics are bound to come up in the examples.

FanDuel apparently takes the position that it has every right to use Garcon’s name in this context. As FanDuel spokeswoman Justine Sacco said in a statement, “We believe this suit is without merit.  There is established law that fantasy operators may use player names and statistics for fantasy contests.”  The law she is referring to is the case of National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2nd 1997), in which the Second Court of Appeals held that federal copyright statutes do not allow for the ownership of data. If this case really is about data, then maybe FanDuel has an ally.

Apart from the merits, the more intriguing thing about this lawsuit is the fact that DraftKings, who advertises in a similar manner to FanDuel, is not a party. The simple answer to its omission is that DraftKings has a marketing relationship with the NFL Players Association and such it is permitted to use the players in its advertising. The more interesting question though is whether DraftKings played any role in urging Garcon and the NFLPA to bring the suit in the first place. What better way to take down a competitor than to sit back and watch a class action lawsuit unfold against it?

Disappointing Settlement Reached By Subway

Avid Readers, as we are sure you recall, we first reported on the class action lawsuit against Subway back in 2013. Basically, the lawsuit alleged that Plaintiffs’ “12 inch” sandwiches from Subway were shorter than 12 inches, and that’s evil.  Two and a half years later, the 11 named Plaintiffs, represented by a collective 10 law firms, have settled with Doctor’s Associates, Inc., the franchisor of Subway Sandwich Shops. The fact that the franchisor’s name is Doctor’s Associates, Inc. is easily the most surprising thing in this lawsuit, by the way.

As a potential member of the class (someone who purchased a 6 or 12 inch sandwich from Subway between Jan. 1, 2003 and Oct. 2, 2015), we could not wait to find out what we were owed for this injustice. We hoped it would be like when Red Bull had to admit that it did not actually give you wings and had to send all of the class members who opted in free Red Bull. We actually did opt in, but we still haven’t received our Red Bull, but that’s not the point. With this Subway lawsuit, we hoped that we would all receive free subs at a minimum.


And a class member, we are set to receive . . . nothing. Apparently, Doctor’s Associates will make changes to its practices to ensure that the length of its sandwiches is as advertised. So, unless you are one of the named Plaintiffs or one of the 11 firms representing them, you are getting nothing. The named Plaintiffs will receive no more than $1,000 each.

Wait, we almost forgot, someone is getting paid, just not you or me. The 11 law firms will be reimbursed their attorneys’ fees, costs, expenses, and a class representative service award (which we can only hope is a button for their lapels) not to exceed $525,000.

Happy Halloween!

We here at the Abnormal Use law blog and Gallivan, White, & Boyd, P.A. wish you a happy and safe Halloween weekend. Above, in honor of the occasion, you’ll find the cover of Ghosts #45, published way, way back in 1976 (when the major publishers dabbled in horror comics). We felt it an appropriate comic book cover for today of all days. If you like, you can peruse a gallery of covers from the Ghosts series over at the Comicvine website by clicking here. Whatever the case, stay safe and enjoy your candy. We’ll see you on Monday.

Scary Links


Happy Halloween, dear readers! To celebrate, we direct you to comic book cover above, that of Batman #237, published way, way back in 1971. “A Haunting Halloween Novel,” the cover proclaims the issue to be as we bear witness to Batman and Robin battling the Reaper. We’d actually never seen this comic book cover before today, and we must confess that we’re a bit curious about it. Presumably, though, Batman and Robin prevailed, as we know the comic book series continued with them. I suppose we should offered a spoiler alert for that?

We must confess that we adore Halloween-themed popular culture. Five years ago, way back in 2010, a few Abnormal Use writers revealed their favorite scary movies. See here to revisit that piece. Our editor, Jim Dedman, wrote as follows:

The scariest movie I’ve seen would be, of course, Stanley Kubrick’s The Shining, although that is not the best story I have about a fear-filled work of cinema. In July of 1999, I was a first quarter law student at Baylor University in Waco, Texas. That month, I faced one of my first – and most dreaded – finals: Civil Procedure. (That frightful test, written and administered by the now retired Professor Trail, was scary enough.). After enduring that test, I took the rest of the day off, drove to Austin, and saw The Blair Witch Project, then out in theatres for only a few days, at the now defunct Dobie Theatre. Shot in a point of view fashion, the film profiled the misadventures of a group of students who venture out into the Maryland woods to explore the Blair Witch myth. The now defunct Dobie was a small, indie venue, and the particular theatre we were in had less than hundred seats. Imagine seeing that movie in such a place before all the hype and newspaper coverage ruined the original guerrilla style marketing of the film. At that time, there were still people who somehow believe the “found footage” was real. Of course, at the end of the day, I can’t say which was more horrifying, the film or the final.

Meanwhile, writer Nick Farr picked a different film:

Before I saw The Exorcist as a young teenager, I thought I was pretty tough. The Shining was boring. “It” made me laugh. Halloween just left me with a childhood crush on Jamie Lee Curtis. There was something about The Exorcist, however, that affected me in a way that Betsy Palmer (a/k/a Mrs. Pamela Voorhees) yielding a machete simply could not. Maybe if Michael Myers would have spun his head around backwards, Halloween would have been more to me than a breakthrough performance for another Hollywood starlet. Maybe if Pennywise the Clown would have crab-walked down a flight of stairs, I would not have thought of “It” as an adult-sized Bozo. Even today, when I reminisce about Regan walking into that party and innocently proclaiming, “You’re going to die up there,” chills run down my spine, and those feelings I felt seventeen years ago are resurrected. Tonight, I better sleep with the holy water.

Stay safe during your trick or treating this weekend!

Halloween Special: Must Home Sellers Disclose That A Home Is Haunted?

Not Haunted

In a recent Charlotte Agenda article, the author, Mary F. Gross, reports on a home that her friend recently purchased – a 1920’s “bootlegger house” which came with historical character, secret compartments for stashing booze, and . . . a ghost? The buyers were apparently notified for the first time at the closing that the home also came with a “mischievous spirit.” In the piece, the author remarks that she would have “ripped up every single document in front of me and accused the owner of breaking some sort of ghost-disclosure law.” This got us thinking. Since it is the week of Halloween, we thought it appropriate to examine what type of “ghost disclosure law” there might be.

As you may expect, in the law, there are not many failure to disclose haunting cases, despite the fact that “[a] 2012 poll conducted by Huffington Post/YouGov found that 45 percent of American respondents believe in ghosts.” See Amanda C. Brown, Caveat Emptor, Buyer Boo-Ware Does Texas Require the Disclosure of Spooky Details in Real Estate Transactions?, 77 Tex. B.J. 780, 781 (2014).

One reported case we found comes from New York. In that proceeding, the “Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists, reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years.” Stambovsky v. Ackley, 169 A.D.2d 254, 255-56 (N.Y.A.D. 1991).  In Stambovsky, the court noted the traditional rule that “with respect to real estate . . . the doctrine of caveat emptore . . . imposes no duty upon the vendor to disclose any information concerning the premises.” Id. at 257. However, the Defendant in Stambovsky “reported [the] presence [of poltergeists] in both a national publication (Readers’ Digest) and the local press (in 1977 and 1982, respectively)” and the home was included on a walking ghost tour in the community. Id. at 256. In other words, the seller did disclose the presence of the poltergeists, but the disclosure was made to everyone except the buyer to whom she sold the home. As a result, the court found that the “defendant is estopped to deny [the poltergeists’] existence and, as a matter of law, the house is haunted.” Id. The Court ultimately concluded that “[a]pplication of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.” Id. at 260.

Some states maintain statutes which generally dictate one’s duty to disclose murders or other ghastly crimes committed in a home. Florida’s statute provides that “[t]he fact that a property was, or was at any time suspected to have been, the site of a homicide, suicide, or death is not a material fact that must be disclosed in a real estate transaction.” Fla. Stat. Ann. § 689.25(b). Massachusetts law provides that a buyer has no duty to disclose that a property has been “psychologically impacted,” meaning that there is no duty to disclose “that the real property was the site of a felony, suicide or homicide” or “that the real property has been the site of an alleged parapsychological or supernatural phenomenon,” among other things.  Mass. Gen. Laws Ann. ch. 93, § 114 (b), (c). California law only requires disclosure of an “occupant’s death upon the real property or the manner of death” if the death occurred in the three years prior to the sale, unless the buyer specifically asks. Cal. Civ. Code § 1710.2 (“Nothing in this section shall be construed to immunize an owner or his or her agent from making an intentional misrepresentation in response to a direct inquiry from a transferee or a prospective transferee of real property, concerning deaths on the real property.”). And sorry, kids, you can’t vandalize a home just because you believe it to be haunted.  See Daniel B. Moar, Case Law from the Crypt the Law of Halloween, N.Y. St. B.J., October 2011, at 10, 12 (citing Hayward v. Carraway, 180 So. 2d 758 (La. Ct. App. 1965) writ refused, 248 La. 909, 182 So. 2d 662 (1966)).

So, there you have it, if the State of North Carolina follows what appears to be the general law on ghost disclosure, there would be no duty for the seller to disclose the ghost in the bootlegger house, unless the seller had previously represented that the house was haunted, or unless the seller responded in the negative when specifically asked. We also wonder whether courts these days would impute to buyers knowledge which can be gleaned from the Internet (for example, from websites which purportedly can tell you if anyone has died in the house you are buying). In any event, for the time being, it does not appear that there would be a cause of action for nondisclosure of the ghost in the bootlegger house.

And, while the question was not posed, we believe we know what the bootlegger house ghost is after. Think about it. The ghost locks himself in the bathroom with the water running and flees down the stairs when someone catches him in the act. He tries to fire up heat sources and gets down copper pots from the cabinets. Folks, the man just wants to make bathtub gin, white lightnin’, or some other form of home made booze!  Let the ghost do what he does best and you may see less of this:

Balanced Chair

And more of this:


[Of course, we make no representations regarding the safety or legality of humans or ghosts making alcohol in a private residence in North Carolina.]