Wrongful death law is arcane and immoral, and it needs to change.

CaptureThat is what I told the Washington State House Judiciary Committee yesterday.  Washington’s wrongful death laws are some of the worst in the country.  There is generally no wrongful death claim for the death of an unmarried adult without children, so for example, most young people just starting out their lives.  You could raise a child for 17 years and 364 days, and if she dies on her 18th birthday, your loss as a parent does not count under the law unless you were financially dependent on her.  If she suffered for days before ultimately dying, her suffering does not count under the law unless you were financially dependent on her.  It is 2018 and we are using laws from the 1800s.

On Thursday, many brave parents came forward to tell their stories of deep and unnatural loss–burying a child.  What caused them to suffer more was Washington’s unnatural laws, which devalue the lives of primarily young adults and immigrants–the law requires not only that parents are dependent on the adult child, but that parents live in Washington.

When it is cheaper to kill than to injure young people, the law is wrong.  More to come on this.

Amtrak 501 Disaster: “shame on them” and lessons from the Ride the Ducks transit disaster


My heart goes out to these families and first responders.  The horror depicted in the picture above pales in comparison to the inside of those trains, and the path forward after an event like today’s Amtrak 501 disaster involving multiple fatalities and dozens of injuries.

News is starting to break about potential causes.  Amtrak President and Co-CEO Richard Anderson said Positive Train Control (“PTC”) was not activated on the tracks at the time of the derailment.  PTC automatically slows the train if it senses the train is going too fast or may crash.  Railroad investigator John Hiatt told CNN, “If there was no Positive Train Control in effect there, then shame on them.”

Responsibility for this tragedy is likely to be complicated.  The train that derailed this morning was owned by both Washington State and Oregon Departments of Transportation.  Amtrak is responsible for service and daily operations. The tracks are owned by Sound Transit.  Because this was the “inaugural” trip, independent engineering and transit firms are also in the mix.

Karen Koehler and I represent 39–a substantial majority–of the victims of the Ride the Ducks crash, believed to be the worst mass transit disaster in Seattle history.   It involves many of the same issues likely to be investigated in the Amtrak 501 disaster: product design and failure, maintenance or operator failure, and fatal public transportation flaws.  With numerous parties and distinct legal theories, this is as complex as litigation gets.  These  cases require dozens of depositions, ten or more forensic experts, lab and engineering testing on an enormous scale, and hundreds of thousands of pages in documentary evidence.

In the Amtrak 501 disaster,  the NTSB will most likely release a preliminary statement concerning potential causes in the coming days or weeks.  The full NTSB investigation can take months or years.  The NTSB will ultimately hold a hearing regarding the information gathered and its conclusions as to the causes and responsibility for the disaster.  NTSB conclusions are not directly admissible in court, however, so the victims of a mass transit disaster still must investigate on their own.

A lot can be learned through comprehensive public disclosure requests and extensive fact-finding investigations in litigation.  First responders will likely conduct a review of the crash and their response to a mass casualty incident (“MCI”).  Although there are several definitions of MCI, it typically refers to an incident where the scope of the injuries and circumstances on scene force first responders to abandon the ordinary standard of care that would apply to one-to-one (or similar ratio) medical response.  An incident will often be declared an MCI during the initial response on scene, which signals to medics and other authorities that they need to triage patients and coordinate the scene.  From that point forward, first responders employ a chain of command with assigned groups such as Rescue Group and Operations.

In an MCI, documentation and immediate identification of victims can be impossible.  We took 19 depositions of first responders in the Ride the Ducks disaster to piece together the carnage of the scene and swift MCI response by the Seattle Fire Department.  After 30 more depositions, the truth reveals itself.

That is, after all, the main goal victims have–what happened to me and my family, and why?  I hope the victims of the Amtrak 501 disaster get the answers they deserve.

Settlement Vultures: NFL Edition

On July 12 I wrote about predatory structured settlement purchasers who buy out periodic payments to the disabled–those who need the funds over their lifetime–for 30-40 cents on the dollar.  On July 16, the New York Times published a story entitled, “After N.F.L. Concussion Settlement, Feeding Frenzy of Lawyers and Lenders.”  The article describes predatory sales pitches to former NFL players “who stand to receive checks from the largest legal settlement in sports history, a pool of money that may top $1 billion for retirees who sued the league for lying to them about the dangers of concussions as they got their heads pounded on the field.”

The stench of $1 billion has attracted lenders offering tens of thousands of dollars that would be paid back from the settlement payouts–commonly called “lawsuit loans” or “pre-settlement funding.”  All they ask in return is 40% interest, which can completely consume any recovery from the settlement, according to the article.

Lawsuit lending is the “before” equivalent of structured settlement purchases, and often preys on a person’s desire for immediate gratification, or worse, their need of funds for healthcare or other essentials, even though there may be far more financially sound solutions.

The New York attorney general filed suit against RD Legal Funding, LLC, a lawsuit lending company based in New Jersey who allegedly targeted NFL players with “severe neurological disorders.”  Reporting by the New York Times explains:

This type of lending against a settlement payout is part of a legal but largely unregulated business focused mostly on victims in personal injury cases. The loans, though, have potentially devastating trapdoors, most notably the high interest rates that kick in immediately after money is advanced, and can cut deeply into the sum a player might ultimately receive in a settlement.

Some financial watchdogs accuse the lenders of preying on people who are sick or who, in the case of the N.F.L. retirees, have memory problems or other cognitive ailments that could mean they cannot fully grasp the terms of the loans, which often require the players’ lawyers to provide consent.

Whether before a settlement or after, there are numerous companies waiting to prey on those in the greatest need, and those who are least able to protect themselves.  Sadly, it works.

Let Me Take This Money Off Your Hands For You: Predatory Structured Settlement Purchasers

We recently handled a fraud and consumer protection case against two structured settlement purchasers that settled in about four months, one for a confidential amount and one for a several hundred thousand dollar gross recovery.  While I cannot yet go into case specifics, below are some words of caution about a predatory and insular industry operating within Washington courts for settlements originating all over the country.


The vast majority of plaintiffs spend their settlement funds in the blink of an eye, relatively speaking.  Numbers vary depending on the study, but generally about 90% of settlement beneficiaries dissipate most or all of a lump sum settlement within five years.  Sometimes clients spend the money wisely.  But because almost no one is accustomed to receiving a large chunk of money all at once–larger than any amount they have ever seen–more often than not a significant portion is blown on frivolous stuff.

For this reason, many lawyers negotiating large claims discuss with clients the need to plan ahead.  We are not financial advisors, but we encourage clients to explore their opportunities with appropriate experts.

One of the most common avenues lawyers mention is a structured settlement (“SS”).    In a SS, the defense insurer agrees to pay a lump sum to purchase an annuity that makes periodic payments on a schedule chosen by the settlement beneficiary, usually over decades, including interest.  A SS affords significant tax benefits under 26 U.S. Code § 130 and 26 U.S. Code § 104(a).  Many lawyers believe a SS protects the beneficiary’s funds over the long term.

Unfortunately, for every smart financial move there is a business willing to take advantage of it.  26 U.S. Code § 5891 allows “factoring transactions,” or sales, of structured settlement benefits.  Thanks to these businesses, for a lump sum “advance” your client can sell some or all of his benefits for 30-40 cents on the dollar, or the equivalent of a 15-20% interest rate (like a college student’s first credit card) on a totally secure transaction (like a high equity home mortgage).

Washington’s Structured Settlement Protection Act (“SSPA”), RCW 19.205, offers some protections.  The SSPA requires that any proposed transfer be approved by a judge with findings that the “transfer is in the best interest of the payee,” and that the “transfer does not contravene any applicable statute or the order of any court.”  RCW 19.205.030.  None of the Act’s provisions may be waived, and complying with the SSPA is “the sole responsibility” of the SS purchaser.  RCW 19.205.060(1) and (6).

Like many laws, however, the SSPA is only as good as the information applied to it.  SS purchasers that petition for these sales often do little or no investigation before certifying that the transfer does not contravene the order of any court and is in the best interest of the SS beneficiary.  Worse, some willfully ignore and conceal contrary information to obtain court approval, such as the SS beneficiary’s disability or a minor settlement order in another state placing permanent restrictions on the transfer of funds.  Some SS purchasers then have the gall to argue that the enforceability of a fraudulently obtained transfer order is subject to an arbitration clause, and is outside the jurisdiction of the court signing the order.

Remember that like Washington, other states provide jurisdiction for SS sales on settlements originating elsewhere.  A Washington SS could be sold in another state based on inadequate investigation and/or concealment by the purchaser. Even within Washington courts, the system could improve.  For example, in King County LCR 40.1 sets all minor/disability settlement approvals before Ex Parte/Probate, whereas LCR 40(b)(14) puts structured settlement transactions under RCW 19.205 before Chief Civil.  The judges deciding what to do with minor/disability settlements, and why, may not be able to foresee how a proposed sale is determined, and the judges deciding on a proposed sale may not be as intimately familiar with the unique interests and options of minor and disability settlements.

For any structured settlement involving a minor or disabled person, you should consider whether or not restrictions on sale/transfer are appropriate.  If so, the settlement agreement and any court order approving settlement should contain language that the beneficiary “shall not have the power to transfer or sell benefits,” either at all or except under very specific conditions or circumstances.  Some jurisdictions require this disempowerment language rather than language merely prohibiting sale.

Common conditions on sale include that the “advance” be used only to fund education, or for compelling financial need.  I would also recommend that a settlement order prohibit any sale exceeding a specific “discount rate,” any sale accompanied by an arbitration agreement, and any sale in a jurisdiction other than the court approving the original settlement.

Good luck.

Preventing Child Drowning in Pools

CaptureAn aquatic safety expert in one of our drowning cases–the tragic pool drowning death of a child–testified that in all his forensic work, he has never seen a state with more detailed, thorough, and readily available pool safety standards than the codes and publications in Washington State.

Drowning is the second leading cause of injury-related deaths of  U.S. children ages 1-14, and among 1-4-year old children, most drownings occur in residential swimming pools.  Washington has enacted detailed pool barrier requirements for two reasons: (1) children are attracted to water, and (2) the “human gate,” i.e. a parent or caretaker, is not effective 100% of the time.  Most young child drownings occur within five minutes of the child being seen inside the home.

Many pool barrier standards are described in WAC 246-260-031 , found here.  Fences must be either five or six feet high (depending on the type of pool and use) and constructed in a way that does not allow children to climb.  Access gates or doors must be self-closing and self-latching when opened from any distance.  The latch must not be accessible to children.

Washington’s Department of Health posts publications online, and the Washington State Environmental Health Association publishes its “Pool Operator’s Manual” containing guidance for recreational pool owners and operators.

The “Pool Operator’s Manual” warns, “you are choosing to be part of the industry and to assume the special risks and rewards that go along with pool ownership.” Pool operators are required to anticipate that children will not always be under direct parental supervision, and that children are creative in their exploration.  The manual encourages operators to invite a parent of a 3-4-year old child to inspect the facility for access points, for precisely this reason.

The Department of Health identifies two more critical features of a safe gate design: (1) the gate should open outward (pull rather than push), and (2) the gate must be constructed to function properly in spite of wear and tear.


These requirements are relatively simple and inexpensive to implement, and they save lives every day.

This Should Never Happen: Diver Air Supply “Severed” in Scuba Death


Several news organizations are reporting that the death of Hank Williams Hoskins Sr. resulted from a “severed” air hose when he was diving off the San Juan Islands on October 26.   Mr. Hoskins, 40, was apparently a commercial diver diving without a backup air supply (in many circumstances this is totally normal).  The county medical examiner blamed the death on an “unsafe dive operation,” with disregard for emergency procedures, according to the Bellingham Herald.

While I have yet to see any explanation as to exactly what happened under water, this is unusual in a number of ways.  First, air hoses do not sever easily.  Divers routinely dive in caves, ship wrecks, and around sea life, all of which could pose a danger to a fragile air supply.  But the hoses attached to air regulators are not thin or delicate for exactly these reasons.

If the commercial dive operation involved an increased risk of severing hoses, as a Divemaster I would expect divers to have secondary emergency air supplies–a second air tank connected to a different regulator.  Commercial divers who dive deeper than 130 ft and/or stay at depth for more than 10-20 minutes often use secondary tanks at decompression stops.  Either of these would have been helpful in the event of an emergency.

But perhaps the most basic safety requirement of Scuba diving that could have prevented this death is the buddy system.  Divers are not supposed to dive alone.  The first stage of dive regulators (which attaches to the tank) connects to two second stages (mouthpieces) so in the event of an emergency like a malfunctioning air supply, a diver can breathe off his buddy’s air.

News reports do not describe exactly what happened, but in most cases safety precautions like the above prevent underwater emergencies from becoming drowning deaths.

(Note: the picture above is an example only.  It hasn’t been reported what brand or type of regulator was used.)


Ducking Responsibility


Saturday was the one year anniversary of Ride the Ducks Crash on the Aurora Bridge.  As you may know our firm represents 20 of the victims.

Last Friday, the owner of Ride the Ducks Seattle (RTDS) went on a media campaign proclaiming at every opportunity that he wants a “global mediation” where everyone can be treated fairly and the cases can be resolved.  This is an effective way for RTDS to convey in a single message to the media and the public that it cares about the victims and is taking responsibility.

But how genuine is it?

Ride the Ducks did propose global mediation involving five defendants and 60 or more plaintiffs, plus dozens more attorneys.  They did so by group email.  Not a proposed stipulation, not with prior agreement by other defendants, not an actual plan, just a group email.  Like how you might throw out an idea for a theme party.

For point of reference, things Ride the Ducks felt warranted actual letterhead or pleading paper have included (1) leveling personal attacks at/scolding Karen for posting a picture of the “Duck Nest” on social media, which RTDS has now broadcast on local news networks, (2) demanding everything we have compiled during our investigation in preparation for the litigation, and (3) scheduling meetings about the case schedule.

For further point of reference, the parties spent hours filing cross motions about when the trial date should be, with the defendants wanting to push it out to June 2019.  But this proposed early global mediation, where everyone will be treated so fairly, warrants a group email.

How else is Ride the Ducks taking responsibility and furthering its desire to globally mediate?  The company:

  1. Spent the week of the anniversary hounding us over our objection to producing the fruits of our investigation, and then, ignoring that we twice asked why the issue needed to be debated that week, unilaterally scheduled a discovery conference on Friday right before the memorial service for the Ride the Ducks victims at North Seattle College.  We were scheduled to attend to be supportive of our clients, because that’s what we do.  Context reminder: trial is two years from now.
  2. Hasn’t bothered to collect medical records to see all of the harm the crash caused (an obvious prerequisite for mediation), and yet…
  3. Thought it was important to demand the STD history of the victims in discovery.


What else is Ride the Ducks doing to take responsibility?  Blaming lawyers, naturally.

Brian Tracey (owner) stated to Q13: “Most aggressive attorneys will get to trial first and get the lion’s share of the money. I don’t want it to happen, I want everybody to be treated fairly.”

Here’s what is actually going on.  Many of the cases filed early after the crash had trial dates as early as November 2016 (two months from now).  All of the cases have since been set on the same modified case schedule with a trial date in September 2018.  Judges handling the cases have requested that all parties file lawsuits in time for their cases to be tried beginning September 2018.  You can decide for yourself if Mr. Tracey’s statement is (a) accurate or (b) a clever way to abscond with the moral high ground and blame lawyers for the lack of a resolution.

This is not the first time Mr. Tracey has gone out of his way to blame lawyers for his company’s bad PR.  He  blamed Karen and other plaintiffs’ lawyers for a “campaign to discredit RTDS’ safety worthiness.”  This is a company which, in addition to the horrific crash that killed five people, admitted to 463 safety violations.  A company with only half of its fleet allowed to conduct tours.  A company which, the lawsuits allege, declined to implement critical, manufacturer-recommended safety fixes “to avoid axle fractures” (what the preliminary NTSB report concluded had happened) that were supposed to be completed “prior to operating 2014.”  Somehow trial lawyers and their photographs of Duck vehicles are to blame for bad PR.

You can always keep blaming us lawyers if you want to duck responsibility.  We can take it. But don’t try to fix your PR problem by giving victims an illusory hope of closure for an extremely traumatic and life-changing event.  On the anniversary no less.  They’re suffering enough.

Here’s an article about the victims, which is what the anniversary should be about.



Social Media Discovery in Civil Litigation

Probably for generational reasons, I have written and spoken at CLEs quite a bit about discovery of social media in civil litigation, in particular personal injury litigation.  At the extremes, defense lawyers want an entire Facebook account, and plaintiff’s lawyers want a privilege that doesn’t even exist for personal diaries.

There is no case law on this in Washington, probably because so few discovery issues ever reach the appellate level.  Below is a list of cases and some analysis regarding the proper scope of social media discovery taken from a WSBA seminar I wrote for and spoke at.  The short version is this.  Facebook can no longer be considered a “social networking” tool.  It is a member-controlled posting environment, like a listserv only more restrictive, an email account, and an instant messenger/texting account, all in one.  It is no more appropriate to demand an entire Facebook account than it is to demand an entire Gmail account.  Conversely, it makes no more sense to deem all of Facebook off limits than it would to declare written communications about a legal claim categorically irrelevant.

The middle ground is to treat social media the same as we treat any pile of documents.  One party can request that the other party go through the documents and produce those relevant or related to x, y, and z.  Thus, although it is easy to get lost in the technical details of social media and national case law, there is no reason to stray too far from CR 26 and the common law interpreting it.  Social media materials should be treated the same as any other data or documents.

Nevertheless, the below materials may help better explain the considerations and analysis specific to social media.

Scope of Discoverable Social Media: What Is “Reasonably Calculated” Based on the Type of Case?

Civil Rule 26(b)(1) provides, “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action… .”  Though the rule is much broader than the tests applied to admissibility at trial, discovery methods must be “reasonably calculated to lead to the discovery of admissible evidence.”

The few Washington appeals cases to address the application of the CR 26 standard suggest that a party seeking discovery should be able to demonstrate (1) a cognizable goal for the discovery—what the party hopes to obtain, (2) that the material sought is probative of an issue in controversy—why the party is entitled to it, and (3) that the method used is reasonably commensurate with that purpose—how the party obtains the information. See, e.g., City of Lakewood v. Koenig, 160 Wn. App. 883, 250 P.3d 113 (Div. 2 2011); Morgan v. PeaceHealth, Inc., 101 Wn. App. 750, 14 P.3d 773 (Div. 1 2000).  Thus, a party should narrow the request to avoid inclusion of information and documents that are not likely to lead to the discovery of admissible evidence.

With social media discovery, this task can sometimes prove pragmatically difficult and highly debatable.  Because Washington cases offer little insight into this specific issue, below is a summary of how courts across the country have addressed discovery of social media in various contexts.

Case Law from Other Jurisdictions Related to Social Media Discovery

Holland v. Barfield, 35 So.3d 953 (Fla. 2010).  The trial court ordered a defendant in a wrongful death action to produce her entire computer hard drive and cell phone.  The plaintiff sought evidence of communication amongst the defendants through Facebook and Myspace.  Emphasizing that the request sought the electronic media themselves, rather than the information contained therein, the court of appeals holds that such unlimited breadth is not appropriate.  It allows the other party complete access to loads of unrelated information without any deference to privileges or rights of privacy.  Id. at 956. Holland also notes that there was no evidence of any destruction or thwarting of discovery by the plaintiff, and thus, no need for such a broad scope. See id. at 955-56.

Mackelprang v. Fidelity National Title Agency of Nevada, 2007 WL 119149, 99 Fair Empl.Prac.Cas. (BNA) 997 (D. Nev. 2007).  The plaintiff sued for sexual harassment in the workplace and ensuing emotional distress.  The defendant sought private messages on her Myspace account, believed to be evidence of her sexual promiscuity and admissions about the subject matter of the litigation.  This casts too wide a net, the court holds, because it allows the defendant access to a great deal of other intensely private information not related to the lawsuit.  Any little detail communicated by a plaintiff could “in some theoretical sense be reflective of her emotional state,” but that is not justification for the breadth of the inquiry.

Barnes v. Cus Nashville, LLC, 2010 WL 2265668 (M.D. Tenn. 2010) (creating a Facebook account for the court and allowing the judge to “friend” the litigants).

Bass v. Miss Porter’s School, 2009 WL 3724968, 1-2 (D.Conn. 2009).  The court emphasizes that relevance is in the eye of the beholder, and the plaintiff offered no guidance as to how she determined which documents to produce.  Concluding that there was a large discrepancy in potentially relevant material between what was produced and the 750 total pages of documents, the court hands over the complete copy of all Facebook documents.

McMillen v. Hummingbird 12 Speedway, Inc., 2010 WL 4403285 (Pa.Com.Pl. Sept. 9, 2010).  The plaintiff in a personal injury case belonged to Facebook and MySpace, and had posted information on those sites about trips he had taken.  Defendant asked for login information to his social media sites.  Plaintiff argued that social media communications were confidential, which implied a new privileged under Pennsylvania law.  The court rejects that argument and declines to find a new privilege, emphasizing that social media tools are used to network and meet new people.  Even if social media users communicate on private matters, the nature of the sites dispels an expectation of confidentiality.  The court cites Facebook and MySpace policy allowing disclosure of information in certain circumstances to support the position that there is no reasonable expectation of privacy.  (Note that Facebook’s posted policy on divulging content, as well as privacy settings, have changed in many ways since this case.)

Romano v. Steelcase, Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650, 653 (2010).  The facts here are nearly identical to McMillen.  Plaintiff claimed permanent injury, putting loss of enjoyment of life at issue.  The public portions of her social media pages revealed traveling, an “active lifestyle.”  Plaintiff refused to answer questions about social media at her deposition.  Defendant then sought “full access to and copies” of all Facebook and MySpace records.  The court holds the material discoverable, noting that social media sites are about sharing information.  The court observes as follows:

Thus, it is reasonable to infer from the limited postings on plaintiff’s public Facebook and MySpace profile pages that her private pages may contain material and information that are relevant to her claims or that may lead to the disclosure of admissible evidence. To deny defendant an opportunity to access these sites not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.

Addressing Plaintiff’s raised Fourth Amendment privacy concerns, the court finds no reasonable expectation of privacy.

E.E.O.C. v. Simply Storage Mgmt., 270 F.R.D. 430, 436-37 (S.D. Ill. 2010).  EEOC sued on behalf of employees for sexual discrimination, which included an emotional distress claim.  The court endeavors to delineate the “broad limits—but limits nevertheless—on the discoverability of social communications in light of a subject as amorphous as emotional and mental health, and to do so in a way that provides meaningful direction to the parties.” Id. at 434.  The court holds as follows:

            (1)        Privacy settings and the user’s expectations of privacy are not a basis to completely shield discovery, but may be relevant to a protective order in determining whether a request is burdensome or oppressive or otherwise improper. Id.

            (2)        The contours of social media communications relevant to emotional distress are difficult to define, but “that does not mean that everything must be disclosed.”  With no finding that the plaintiff’s responses to tailored requests were deficient, complete disclosure of site material is not necessary. Id.

            (3)        The scope of allowable discovery is broader than communications related directly to the issues raised in Plaintiff’s complaint.  A wider net may retrieve communications related to injury or credibility, which is discoverable. Id. at 435-36.

            (4)        “With these considerations in mind, the court determines that the appropriate scope of relevance is any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications … that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.” Id. at 436.  This rule applies to third-party communications with the plaintiffs, as well as photographs and videos posted by the plaintiffs.  Photos and videos where the plaintiffs are merely tagged are less likely to be relevant.

Patterson v. Turner Constr. Co., 88 A.3d 617, 931 N.Y.S.2d 311 (2011).  Patterson sued for personal injuries and the defendant moved to compel production of all of Patterson’s Facebook records after the subject incident.  The trial court reviewed the social media materials in camera and determined that at least some of the discovery “will result in the disclosure of relevant evidence,” but that it is possible that not all Facebook communications are related to issues in the lawsuit.  The appeals court reversed and remanded for more specific identification of Patterson’s relevant Facebook information, specifically that which may contradict allegations of injury.  However, the court also reasons that Patterson’s Facebook materials are not shielded from discovery merely by use of privacy settings, just as a written personal diary may be discoverable.

Held v. Ferrellgas, 14 Inc., 2011 WL 3 896513, * 1 (D. Kan. Aug. 31, 20 11).  In an employment discrimination case, the defendant sought the plaintiff’s Facebook data.  The court found such material relevant to the case.  Further, the court endorsed both the time-scope and manner of discovery, which requested only data during the plaintiff’s employment, and allowed the plaintiff to download and produce the data himself rather than provide direct access.

Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388-89 (E.D. Mich. 2012).

Tompkins is a slip and fall case where defendant requested releases to obtain social media site information.  The court holds as follows:

I agree that material posted on a “private” Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.  Rather, consistent with Rule 26(b) and with the cases cited by both Plaintiff and Defendant, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.

Id. at 388.  The court distinguishes McMillen and Romano, noting that the alleged threshold evidence for the relevance of the inquiry, a picture of the plaintiff holding her dog, was not inconsistent with the plaintiff’s allegations.  The court concludes, “based on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.” Id. at 389.  Further, the court finds, a request for the entire account was overly broad.

Reid v. Ingerman Smith LLP, 876 F. Supp. 2d 176 (E.D.N.Y. 2012).  In a sexual harassment lawsuit, the court found social media materials largely relevant, with minimal reasonable expectations of privacy.  The court’s reasoning and citations are quoted below.

Although the law regarding the scope of discovery of electronically stored information (“ESI”) is still unsettled, there is no dispute that social media information may be a source of relevant information that is discoverable. Courts have found, particularly in cases involving claims of personal injuries, that social media information may reflect a “plaintiff’s emotional or mental state, her physical condition, activity level, employment, this litigation, and the injuries and damages claimed.” See, e.g., Sourdiff v. Texas Roadhouse Holdings, LLC, 2011 WL 7560647, at *1 (N.D.N.Y. 2011). For example, where a plaintiff puts her emotional well-being at issue when asserting claims of sexual harassment or discrimination as in this action, some courts have found that “Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the content’s posting.” Bass v. Miss Porter’s School, 2009 WL 3724968, at *1 (D. Conn. 2009); see also Glazer v. Fireman’s Fund Ins. Co., 2012 WL 1197167, at *1, *3 (S.D.N.Y. 2012) (in employment discrimination case, plaintiff’s chats with online psychic revealed her “work performance, relationships with co-workers, views regarding her treatment . . . emotional state before, during, and after her employment, efforts to mitigate damages”).

On the other hand, as other courts have observed, the “relevance of the content of Plaintiff’s Facebook usage . . . is more in the eye of the beholder than subject to strict legal demarcations.” Bass 2009 WL 3724968, at *1. Whether electronically stored and dissimated [sic] on the Internet or not, “anything that a person says or does might in some theoretical sense be reflective of her emotional state.” Rozell v. Ross-Holst, 2006 WL 163143, at *3 (S.D.N.Y. 2006).

The court examined the plaintiff’s social media materials and determined that both the public and private materials contained probative evidence of her mental state and participation in activities, which were relevant to her damages claim.  Citing New York precedent allowing discovery of diaries containing contemporaneous mental states and impressions of the parties, the court draws no material distinction between such diaries and Facebook privacy settings.  Further, the plaintiff had no “justifiable expectation that her [Facebook] friends would keep her profile private” (internal quotations omitted), and the wider the circle of friends, the more likely it is that posts would be viewed by someone the Facebook user does not foresee.  Electronic communications in general may come with a lower expectation of privacy.

Nevertheless, the court declines to order production of all Facebook materials because “not all postings will be relevant to her claims.”  The court applies a standard that the plaintiff must disclose social media communications and photographs “that reveal, refer, or relate to any emotion, feeling, or mental state, and that reveal, refer, or relate to events that could reasonably [be] expected to produce a significant emotion, feeling or mental state” (internal quotations omitted).  In its order, the court limits the time-scope of production and addresses application to each Facebook function (e.g. tagging, photographs, etc.).

McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 910 N.Y.S.2d 614 (N.Y. App.Div. 2010) (finding that defendant “failed to establish a factual predicate with respect to the relevancy of the evidence,” and that “defendant essentially sought permission to conduct ‘a fishing expedition’ into plaintiff’s Facebook account based on the mere hope of finding relevant evidence”).

Methods of Discovery: Production of Social Media Content vs. Methods of Direct Access

In the early stages of discovery battles over social media, some courts required that litigants provide direct access (login and password) for their social media accounts.  These decisions appear to result from a litigant asserting a privilege that did not exist, a poor understanding of how social media platforms are used, or a limited and discoverable use of social media. See Romano, Mackelprang, and Bass, supra.  Direct access to Facebook, for example, may include some posts to friends, but may also include hundreds of private messages, like emails, which may have no bearing on the litigant’s claims and instead may be very private in nature to the other parties to the messages.  The other cases listed above, and most all of the more recent decisions, recognize that social media and its various functions also serve various purposes for each individual.  Accordingly, most courts not only decline requests for direct access, but will also narrow the production based on an applied standard or determine firsthand which materials are discoverable.

Other than site inspections, it is very rare in discovery that a party is allowed direct access to records that are not by nature entirely at issue in the case (e.g. medical records in a personal injury case, an issue governed by statute), particularly when the privacy of non-litigants is involved.  For example, in an employment discharge case, demanding all social media records from the employee-plaintiff may be similarly unfair and invasive as the employee demanding all emails from the employer, regardless of the participants or subject.  Both could be described not just as a “fishing expedition,” but a “net fishing expedition,” scraping up everything on the sea floor.

To cast a wide net, litigants must have a compelling justification.  As the above cases illustrate, a wide net may be justified if a party selects which materials to produce without identifying any basis for the selection, or if a party conceals discoverable materials or otherwise commits misconduct that puts good faith responses in question.

Why Criminal Assailants Are Not At “Fault” in a Business Premises Case

One of the most commonly misunderstood areas of tort law, including within the legal community,  is the issue of the fault of the assailant.  When a plaintiff files a lawsuit alleging that the business failed to use reasonable care to protect a customer from foreseeable criminal conduct, at the surface level it seems logical that the criminal should share blame.  But that is not the case.

To start, Washington’s Legislature defines “fault” in RCW 4.22.015 as, in relevant part, “acts or omissions, including misuse of a product, that are in any measure negligent or reckless toward the person or property of the actor or others.”  There is, for lack of a better phrase coming to mind, a range of egregiousness in tort law, which starts with ordinary negligence, then goes to gross negligence, then recklessness, and then intentional acts.  Washington’s comparative fault statute excludes intentional acts from the definition of “fault.”

But, how can the person most at fault, in a moral sense, not be at fault in the legal sense?  To understand why, we first need to examine why the business has a duty to protect patrons in the first place.

In Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 195, 943 P.2d 286 (1997), Plaintiff Nivens parked his car and began entering a 7-11 in Tacoma, Washington.   Before he could enter, a group of loitering youths asked him if he would buy them beer.  Nivens refused.  As he attempted to enter the store, the youths grabbed him from behind and assaulted him.

The Supreme Court acknowledged that it was confronted squarely with a major issue, and proceeded to resolve that issue:

We must decide if a business owes a duty to its invitees to protect them from criminal acts by third persons on the business premises.  Because a business has a special relationship with them, it has a duty to take reasonable steps to protect invitees from imminent criminal harm or reasonably foreseeable criminal conduct by third persons.

Id. at 194.  Nivens reasons, “As with physical hazards on the premises, the invitee entrusts himself or herself to the control of the business owner over the premises and to the conduct of others on the premises.”  Id.  Further, “We discern no reason not to extend the duty of business owners to invitees to keep their premises reasonably free of physically dangerous conditions in situations in which business invitees may be harmed by third persons.”  Id. at 202-203.

As to the scope of the duty owed, Nivens expressly adopts the Restatement (Second) of Torts § 344 (1965):

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a)        discover that such acts are being done or are likely to be done, or

(b)       give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

Id. at 203-204.  The court recites the Comment for fuller clarification:

A public utility or other possessor of land who holds it open to the public for entry for his business purposes is not an insurer of the safety of such visitors against the acts of third persons, or the acts of animals. He is, however, under a duty to exercise reasonable care to give them protection. In many cases a warning is sufficient care if the possessor reasonably believes that it will be enough to enable the visitor to avoid the harm, or protect himself against it. There are, however, many situations in which the possessor cannot reasonably assume that a warning will be sufficient. He is then required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons, or animals, may conduct themselves in a manner which will endanger the safety of the visitor…. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

Id. at 204-205 (emphasis added, original emphasis omitted).  The Nivens court concludes, “we hold a business owes a duty to its invitees to protect them from imminent criminal harm and reasonably foreseeable criminal conduct by third persons. The business owner must take reasonable steps to prevent such harm in order to satisfy the duty.”  Id. at 205.

In short, a business has a special relationship with its customers because it attracts customers and benefits financially from their presence.  It is only fair then, that if the business owner knows the business also attracts violent people, or there is otherwise a foreseeable risk of violence, he or she ought to take reasonable steps to prevent harm to the customers.

To put it another way, the law does not allow businesses to simply say, “criminals will be criminals.”  Rather, when a business invites the customer into a foreseeable risk, the business has a responsibility to use reasonable care to prevent assault injuries.

In likening criminal assault to physical hazards on the premises, which is also a cause for premises liability, Washington’s Supreme Court essentially characterizes the criminal wrongdoer as a mechanism of injury in the negligence case against the business, rather than an at-fault party.

For that reason, any question as to the conduct of the assailant goes to causation, not fault.  Did the business’s negligence allow (cause) the assault to occur, or would it have occurred anyway?

This issue was thoroughly examined and spelled out in Rollins v. King County Metro Transit, 148 Wn. App. 370, 199 P.3d 499 (Div. 1 2009).  In Rollins, a bus passenger attacked by a number of assailants brought an action against the County for negligence in allowing the assault.  The plaintiff did not name the tortfeasors as defendants.  Id. at 374-76.

The court reported, “Metro proposed a jury instruction stating the plaintiffs must prove ‘the percentage of damages caused by negligent conduct and the percentage of damages caused by the assailants’ intentional conduct.”  Metro requested a special verdict form requiring the jury to calculate such percentages pursuant to Tegman v. Accident & Medical Investigations, Inc., 150 Wn.2d 102, 75 P.3d 497 (2003).  Id. at 376.  Metro was wrong.

Rollins explains, “Tegman is about joint and several liability.  Here, Metro is the only defendant and negligence is the plaintiffs’ only theory. To recover at all, plaintiffs had to prove their injuries were proximately caused by Metro’s negligence.”  Id. at 379.  Thus, liability is about the overlap between the negligence and the intentional conduct allowed by Defendants.

Rollins elaborates on the overlap between negligence and intentional harms:

The jury here was instructed that plaintiffs had to prove that Metro was negligent, that Metro’s negligence was a proximate cause of plaintiffs’ injury, that there may be more than one proximate cause of an injury, and that its verdict should be for Metro if it found the sole proximate cause of injury was a cause other than Metro’s negligence.

Id. at 379.  The court declines to approve an instruction as to the percentage of damages caused by the defendant’s negligence and the percentage of damages caused by the intentional tortfeasor’s negligence because there is no segregation burden, especially where the intentional tortfeasor is not a party.  Id. at 382.

The key  in any case involving intentional harm is that there may be more than one proximate cause for an injury.  That does not prevent an individual defendant from being 100% responsible if, for instance, the fact-finder determines that but for its failure to screen for weapons, the plaintiff would not have been shot. As WPI 15.04 states:

There may be more than one proximate cause of the same injury or event.  If you find that the defendant was negligent and that such negligence was a proximate cause of injury or damage to the plaintiff, it is not a defense that the act of some other person who is not a party to this lawsuit may also have been a proximate cause.

In a successful claim for premises liability for criminal assault, both the business’s negligence and the assailant’s intentional acts caused the injuries.  Causation is not apportioned–only fault is.  Thus, there is no apportionment of anything to the assailant in a claim against a business for the negligent failure to protect customers.

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