Yet another case illustrates why defense counsel, including products liability litigators, should be mindful of the ever changing landscape of social media and its potential for impeachment of Plaintiffs in litigation. That case is the recently issued Sedie v. United States, No. C-08-04417, 2010 WL 1644252 (N.D. Cal. April 21, 2010). In that case, the Plaintiff sued the federal government under the Federal Tort Claims Act after a 2006 automobile accident during which he, riding a bicycle, was struck by a postal vehicle. Both parties consented to a bench trial before U.S. Magistrate Judge Elizabeth D. LaPorte, which took place this past February. In her “Findings of Fact and Conclusions of Law Following Court Trial,” Judge LaPorte ultimately found that the Plaintiff had established the government’s liability and awarded damages in the amount of $297,624.66.
Even though the magistrate ultimately found for the Plaintiff, in reviewing some of the submitted damages evidence, the magistrate noted the contradictions between Plaintiff’s purported damages and Internet evidence uncovered by defense counsel:
Other evidence also undermines the extent of Plaintiff’s general damages. Plaintiff testified that he spends much of his time lying down, and there are times that he does not leave his room because he is depressed about his overall situation. However, the Court finds this testimony is only partially accurate, and is exaggerated given the other evidence of his actual activities and his pattern of exaggeration. For example, Plaintiff’s online writings show that his life was not constantly “hell on earth” as he claimed. Plaintiff maintained his pages on MySpace and Facebook since the accident, and as of January 12, 2010, his MySpace page listed various activities and hobbies, and friends of Plaintiff. Plaintiff wrote entries on his MySpace page, including one on June 3, 2007, in which he described painting as a frustrating activity when his arm hairs would get caught in paint. Yet painting was on the list of activities that Plaintiff claims were adversely affected by the accident. Plaintiff also testified that he had not done any painting since the accident, but the MySpace entry was written in the present tense at a time just prior to his microdiscectomy. Plaintiff testified that the MySpace entry was a joke, but the Court did not find the testimony credible.
Id. at *23 (emphasis added; citations omitted).
Plaintiff’s attorneys continue to warn their current and potential clients of the potential adverse impact of Facebook and MySpace profiles. For the most part, these clients do not appear to be heeding that advice. That is why the diligent practitioner will always survey the Internet to determine whether a given Plaintiff has established profiles on such sites.