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MARICOPA LAWYER Did You Set Your Facebook Profile to ‘Private’? Social networking sites can be a great


resource for litigation. A quick search of the Internet shows that lawyers have thought of a number of ways to mine and use information from sites such as Facebook in lawsuits, a few ways of which I will mention here. The most obvious example is a variation on plaintiffs who claim to have a disabling injury being caught on camera while engaged in some sport or physical activity. The variation is that it is now the plaintiff himself who may post the photos on Facebook (as I am writing this, a


Congressman from New York is experienc- ing a similar problem). Under the Stored Communications Act, it may be difficult to obtain that sort of information from Facebook directly, but there are other ways to get this information. For example, if the party’s account is not set to “private,” the content on their page may be publicly available. Even if the account is set to private, there are a grow- ing number of decisions that find that par- ties have an obligation to produce informa- tion from social networking sites in response to requests for production under Rule 34. Other age-old discovery issues take on


a new life in the social media context. Imagine a party who is savvy enough to know that information on their Twitter, Facebook, or LinkedIn account may be used against her during the litigation, and so deactivates that account to avoid


Local Attorney Ed Bull Recovers Sight After Brain Tumor Surgery


By Lynne Reaves Medical experts believe as many as one


in every 10 people may have a brain tumor. The good news is that most of these tumors, located in the pituitary gland, will never inter- fere with a person’s life. That was not the case for Phoenix lawyer Ed Bull, howev- er, who was rushed to Barrow Neurological Institute last November with a split- ting headache and double vision. At Barrow, doctors found a golf-ball-sized brain tumor. Luckily the tumor was a pituitary gland mass—rarely malignant—but it had begun pushing on the optic nerve and, left untreated, could have made Bull blind.


“I felt like my head was splitting open and


by the time my wife got me to the ER, I was seeing double. One of my eyes was looking one way and the other looking the other way. I was losing my sight,” said Bull, the president of Phoenix law firm Burch & Cracchiolo. “When they told me I had a brain tumor, I instantly thought the worst. But I was wrong.” Barrow neurosurgeon Andrew Little, MD, is a pituitary tumor expert and says Bull was losing his eyesight rapidly when he met him in the emergency room. “There was bleeding


The Bull Family


into the pituitary tumor, which caused it to expand rapidly and press on the optic nerve, the nerve that controls vision. Prompt action was needed to save his vision,” said Little. The pituitary gland is located in the base of the skull between the optic nerves and largely controls hor- mones. Researchers say pituitary tumors gener- ally grow very slowly. In rare cases, bleed- ing occurs inside the tumors and causes severe symptoms. The tumors are usually detected when they start to press on the optic nerves, caus-


ing vision problems. Other symptoms include nausea, weight change, loss of appetite, fatigue, joint pain, increase in shoe or ring size, and high blood pressure. Bull’s tumor was removed in a three-hour


surgery with a minimally invasive technique through his nose. “I think if we would not have jumped up and gotten to Barrow, this tumor might have made me blind or even killed me,” said Bull. Experts say there is no way of knowing


how long the tumor had been growing. “I had no idea until that night. It was probably there for years.” Bull says his eyesight is back to normal now, but his life will never be normal again. “I appreciate every moment of every day now,” he said. 


the problem. Doing so is no different than throwing out incriminating docu- ments, and may give rise to sanctions for spoliation.


Another potential pitfall of social net-


working is the attorney-client privilege. Suppose you have a new client who’s very active on Twitter. Without thinking about the consequences, that person may tweet that she just met with her attorney who thinks she has a great case, except that it may be too late to sue. Writing something like that could call the attorney-client privi- lege into question. Perhaps it is time for lawyers to advise their clients at the outset of cases to watch what they tweet. Sites such as LinkedIn, Facebook, and


Twitter may also reveal potential witnesses. The list of friends, followers, or connec- tions may turn up people with whom a wit- ness has communicated about a case, for example. In one extreme example of mak-


ing use of social networking sites, a few years back an Australian court permitted the plaintiff to serve default papers over Facebook on an opponent who had been dodging service. Finally, there are pitfalls for lawyers in using social media as a litigation tool. Ethics opinions have sprung up around the country that analyze exactly how a lawyer may go about collecting information. For example, Philadelphia Bar Association Opinion 2009-02 considered the ethical implications of trying to “friend” an oppos- ing party to get at their social media infor- mation. In short, there are numerous ways social media can be used as a valuable litigation tool, and there is a growing body of law addressing the issues that can arise. And with that, we can all now take a minute to make sure we’ve set our Facebook profiles to “private.” 


A Big Thank You to the Sponsors of Our Very Successful 2011 Summer Associates Social!


JULY 2011 • 3


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