Discovery and Social Media

Popular social media sites, such as Facebook and Instagram, serve as a platform for individuals to share their lives with a select group of their online friends or the world.  These social media accounts may provide key sources of information in litigation which should not be overlooked.

Courts have generally held that social media content is neither privileged nor protected by any right of privacy.  See Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012).    Even if a person has implemented certain privacy settings with respect to their profile, the information is still not protected from disclosure based on a claim of privacy.  E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010).

In Patterson v. Turner Constr. Co., 931 N.Y.S.2d 311 (N.Y. App. Div. 2011), the court drew a comparison between private social media pages and a person’s diary, reasoning that in the same way that “relevant matter” from and individual’s diary is discoverable, any relevant material from an individual’s Facebook account is discoverable regardless of the privacy settings utilized by the page’s creator.  As one judge has observed, “Facebook is not used as a means by which account holders carry on monologues with themselves.”  Simply Storage Mgmt., 270 F.R.D. at 434.

The general rule in light of the foregoing is that an individual’s social media content is discoverable if it falls within the scope of discovery as set forth in Civil Rule 26(b)(1):

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action….  It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

This rule is designed to permit a broad scope of discovery.  Barfield v. City of Seattle, 100 Wn. 2d 878, 883, 676 P.2d 438, 441 (1984); see also Simply Storage Mgmt., 270 F.R.D. at 434 (where relevance is in doubt, FRCP Rule 26(b)(1) indicates that the court should permit discovery).

By:  Alicia Dragoo

 

Winter Weather Hazards – What you need to know

Winter is here! Located in the Northwest, Kirkpatrick & Startzel often litigates slip-and-fall cases where a person was injured from slipping on ice or snow accumulation. A landlord or business could face a major lawsuit if the winter weather is not dealt with responsibly.  Likewise, a tenant or patron may suffer serious injury but not know their legal rights or obligations.  Here are some tips everyone may use, heading into the cold-weather months.

LANDOWNERS

Washington law recognizes a landowner’s responsibility to exercise sensible care in alleviating an ice or snow accumulation hazard when the landowner knows, or should know, about the danger.  Likewise, commercial tenants should not assume that they have no responsibility in maintaining their business premises.  Even if the danger is open and obvious, the law expects that guests and tenants will endanger themselves, and holds irresponsible property owners liable.  Thus, a landowner who wants to avoid a lawsuit should take affirmative steps to ensure that all winter hazards are addressed in a timely manner.

In addition to clearing snow from parking lots and driveways, landlords should ensure sidewalks are shoveled.  An application of deicer or sand can help combat slippery ice.  Businesses should ensure their workers are equipped with the shovels, snow blowers, deicer, sand or other tools needed to address dangerous sidewalks and parking lots.  Everyone should document their efforts. Record all snow removal policies and log complaints about snow as well as each time snow is shoveled or other actions are taken to improve the safety of the premises.

TENANTS & PATRONS

Tenants and patrons must also exercise reasonable care.  If there is a way to avoid the hazard, then avoid it.   We deal with many personal injury cases where the injured person could have exercised some discretion and completely avoided the accident, and subsequent litigation.  If you see a dangerous hazard, notify your landlord or the business you are visiting.  If snow is not removed in a timely manner and creates a hazard, submit a complaint in writing.  Evidence is important in establishing a personal injury case, and so developing good habits in recording evidence and documenting your actions can be very helpful.

If you suffered substantial injuries in a slip and fall on snow or ice, you may want to speak to an experienced litigation attorney.

By: Luke O’Bannan

Kirkpatrick & Startzel Attorneys Present at Evidence CLE

Kirkpatrick & Startzel attorneys Alicia Dragoo and Timothy Nault recently presented at a live seminar on the rules of evidence hosted by the National Business Institute. Such seminars are put on to fulfill attorneys’ obligations in obtaining continuing legal education (CLE) credits. Attending the seminar were members of the bar from Washington and Idaho. Several other attorneys from the Spokane area also presented at the seminar.

Ms. Dragoo’s presentation focused on the presentation of lay and expert witness testimony in court proceedings, as well as the use of expert reports. The effective presentation of testimony from a qualified expert witness is often critical to success in court proceedings. Some claims, such as medical malpractice or product liability, may require expert testimony as a matter of course. Proving damages often involves expert witness testimony as well. Ms. Dragoo discussed critical aspects of qualifying or disqualifying expert witness testimony in state and federal court.

Mr. Nault discussed ethical considerations in the presentation and handling of evidence. Mr. Nault’s presentation included a discussion on the law of spoliation, which can occur when a party destroys or fails to preserve evidence relevant to a lawsuit. Mr. Nault discussed spoliation principles as applied to a wide variety of facts and circumstances, including personal injury actions, construction defect cases, and malpractice claims.

CLE courses are important to providing legal services to clients that are consistent with current trends in the law. Kirkpatrick & Startzel is proud to take part in these courses, and its attorneys strive to develop and maintain the highest degree of professional competence for the benefit of their clients.

Troublesome Neighbors? There Are Solutions.

Our office is often involved in litigation between adjoining property owners.  A common dispute involves a claim of trespass to land.  Some of the disputes are minor, such as your neighbor depositing yard waste onto your property.  The norm is the more significant problem, such as the neighbor that shoots fireworks onto your property causing a small brush fire, or the neighbor directing wastewater onto your property.  Disputes between neighbors regarding actions involving trespass can frequently be resolved through conversation and negotiation.  There are times, however, when the neighbors simply cannot resolve their differences, and resorting to the courts is necessary.

Trespass to Land

Washington law recognizes a claim for trespass to land when an individual intentionally enters someone else’s property without permission or deposits something on another person’s property without permission or invitation.   A trespasser can be liable for trespass if he/she intentionally:

  1.  Enters land that is owned or possessed by another;
  2.  Remains on the land; or
  3.  Fails to remove from the other person’s land a thing (such as garbage,   waste material, etc.).

Although trespass is commonly referred to as an “intentional tort” under the law, it is not necessary under Washington law that a trespasser actually intends to enter on the land of another person.  Intent can be assumed if the trespasser undertakes actions or activities realizing that there is a high probability a trespass will occur and nevertheless disregards that probability.  Washington courts also recognize a negligent intrusion may also give rise to a claim against you for trespass.

Proving Trespass to Land Claim

To prove that a defendant is liable for trespass to land, there are four distinct elements that you must demonstrate:

  1. Intent for Trespass to Land: The intent for trespass to land needs only to be to cause the intrusion on another’s real property.  That is, there does not need to be an actual intent of the individual to trespass, but rather, an intent to commit an act or conduct that constitutes the trespass.  Therefore, entering the land by mistake can be trespass under Washington law.  Trespass also encompasses conduct that causes an object or thing to enter onto someone’s property.
  2. Property of Another: A trespass claim must be brought by the person that has a legal interest in the property.  The entitlement to bring a claim need only be the possessor of the land, not just the owner.  For example, a tenant renting a house could bring an action for trespass to land, even though the tenant only has a lease and no title to the property.
  3. Without Owner’s Consent: Entry onto the property must be unauthorized; that is, the trespasser did not get express or implied permission.  There are individuals that often have implied consent for limited entry onto residential properties, such as police or postal carriers. However, implied consent depends upon the circumstances.
  4. Damages: A viable claim of trespass must involve substantial damages suffered by the property owner.

What Remedies are Available?

A property owner or tenant has a right to be compensated for the damage caused by the trespass.  There are a variety of different damages that can be recoverable, including:

  • Cost of restoring the property to its pre-damage condition;
  • Loss of use of the property;
  • Loss of market value of the property;
  • Emotional distress or discomfort and annoyance.

There are some limitations on damage awards.  If there is a permanent damage to the property, the common measure of damages is the loss of fair market value.  If the damage is only temporary in nature, the cost to repair or restore is the more appropriate basis for a damage award.  When the cost to repair or restore, however, exceeds the decrease in market value such that the repairs are no longer economically feasible, then the damage award is only for the loss of market value.

There are times when the trespass to land is continuous and unabated.  Obtaining a court-ordered injunction precluding the continuing trespass is also an available remedy.  Please contact our office for a free initial consultation if you are involved in a situation involving trespass to land.

By:  Todd R. Startzel

 

Client Testimonial

(This testimonial was written to the claims specialist at Nationwide Insurance Company.)

I don’t truly know where to begin to THANK YOU for all you have done for me, my family, and my business. I am without a doubt, a Nationwide Lifer! Your professionalism and caring manner, willingness to work with us and unwavering flexibility in helping to manage our lawsuit has been more than exceptional. You are spectacular! Stellar!

Please know that Todd Startzel and his entire team in Spokane have been truly incredible over the past 1.5 years.

Never before working with you, Todd, and Nationwide Insurance, have I ever felt that I was “in good hands.” (I know, that’s Allstate’s tagline)….I say, “With Nationwide, we’re in the BEST hands possible!” Nationwide is more than “on our side”.

I know from real world experience, that “Nationwide is AT MY SIDE, and even LIFTING ME UP at the same time!”

There are no words for how incredible, talented, and damn smart Todd and Stephanie are at Startzel’s law firm. They have been an absolute joy to work with over the past few years and we have even developed a great friendship through the turmoil of this lawsuit.

It pleases me so very much that Nationwide DID NOT have to settle the case for even a single penny! I know you have Todd’s team’s costs you have incurred, and I cannot tell you how deeply appreciative Gail and I are for your support and counsel during this lawsuit.

I authorize you to use this testimonial any way you would desire. My sincerest thanks to you and all you have done for us.

With my warmest regards,

Steve Inch

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