Litigation News - June 2018

by McNees Wallace & Nurick LLC

Recent Supreme Court Decisions Strengthen Drivers’ Privacy Rights

By Sarah Hyser-Staub

The Fourth Amendment protects individuals from warrantless searches and seizures in areas where they have a reasonable expectation of privacy. The United States Supreme Court recently issued two opinions that give citizens greater protection against warrantless vehicle searches, both at home and on the road.

In Collins v. Virginia, the Court considered whether a police officer may approach and search a vehicle parked on private property but visible from the public street. The Albemarle County police were looking for an orange and black motorcycle that had been reported stolen and had eluded them in a high-speed chase a few months earlier. During the investigation, an officer discovered that Ryan Collins had posted photos of an orange and black motorcycle parked in the driveway of a house on his Facebook page. The officer drove to the house and parked on the street. From the street, he could see a tarp covering what appeared to be a motorcycle, parked in the same location as shown in the picture. Without a warrant, the officer walked up the driveway, lifted the tarp, ran a search of the motorcycle’s license plate, and took photographs. The officer determined that the motorcycle was in fact stolen, and Collins was arrested when he returned to the home.

During trial, Collins argued that the police had violated his Fourth Amendment rights by unlawfully entering the property to search the motorcycle. Collins contended that the motorcycle was parked in an area considered to be the “curtilage” of the home, which is the area immediately surrounding the home. Ultimately, the Supreme Court agreed. In an 8-1 decision written by Justice Sotomayor, the Court reasoned that the area searched was indeed within the curtilage of the home because the motorcycle was parked in a partially enclosed portion of the driveway that abutted the house. The Court found that the Fourth Amendment’s strongest protection applied here and that the automobile exception—which allows warrantless searches of automobiles in certain situations—did not apply. The lone dissenter, Justice Alito, opined that the search was not unreasonable because the motorcycle was parked in plain view. Now, under Collins, warrantless searches of automobiles parked within the curtilage of the home are not permissible.

Argued on the same day as Collins, Byrd v. United States involved the search of a rental car driven by an individual who was not listed on the rental agreement. Terrence Byrd’s girlfriend rented the car in New Jersey in her name only. She provided the keys to Byrd, who placed personal belongings in the trunk and then left alone to drive to Pittsburgh, Pennsylvania. Byrd was pulled over for a traffic violation while driving on a Pennsylvania highway. During the stop, the police officer found Byrd’s mannerisms suspicious and ran a criminal background check, which revealed that Byrd was using an alias and had an outstanding arrest warrant in New Jersey. Because Byrd was not listed on the rental agreement, the officer searched the car without Byrd’s consent. The search uncovered a significant amount of heroin and body armor. Byrd was arrested and charged with federal drug charges in the United States District Court for the Middle District of Pennsylvania.

Byrd tried to suppress the evidence, arguing that the search had violated his rights under the Fourth Amendment. The trial court denied Byrd’s motion, and he pleaded guilty but reserved his right to appeal the evidentiary ruling. On appeal, the Supreme Court unanimously found that Byrd had a reasonable expectation of privacy in the rental vehicle and that the officer had violated Byrd’s Fourth Amendment rights by searching the vehicle without his consent. Writing for the Court, Justice Kennedy reasoned that “as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.” In other words, breach of the rental agreement did not invalidate Byrd’s expectation of privacy.

Notably, the reversal does not necessarily mean Byrd is off the hook: The Court remanded the case to the trial court for consideration of whether the officer had probable cause for the search in the first place, and whether Byrd “intentionally used a third party as a straw man in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime.”

Together, Collins and Byrd give drivers greater protection against warrantless searches and may indicate that the Supreme Court will continue to be protective of privacy rights, even after Justice Kennedy retires. The litigators at McNees regularly monitor recent state and federal cases and counsel companies and individuals whose rights have been violated.

The Cost of Online Fundraising: Crowdfunding Campaigns and Their Potential Use in Civil Litigation

By James Franklin, AJ Dean*, and Jo-Anne Thompson*

“Traditionally, those with the most capital have controlled what products get created, how businesses operate, and where our society focuses its talent and intellect. What makes crowdfunding so revolutionary is its ability to counter this narrative. Through the support of those who share your values, you can pursue a project that puts more emphasis on improving society than on making large amounts of money.” – crowdfunding platform YouCaring

Unsurprisingly, crowdfunding is on the rise. With that rise, however, comes the potential for using evidence of crowdfunding in civil litigation.

What Exactly is Crowdfunding?

Crowdfunding is a public solicitation over the internet for financial resources via monetary donations. These donation-generating tools have greatly increased in popularity over the past several years. According to a 2016 study by the Pew Research Center, over 20% of American adults have personally donated to crowdfunding campaigns. The study also revealed that another 36% of American adults, despite never contributing to a crowdfunding campaign, have heard of these fundraising platforms. Top crowdfunding sites, such as GoFundMe, Kickstarter, and YouCaring (now part of GoFundMe), have helped to raise significant amounts of money for their users. To date, GoFundMe and Kickstarter have exceeded a collective total of over $3 billion. The total from YouCaring, a crowdfunding site that focuses on fundraising and support for humanitarian causes, has surpassed $500 million. While crowdfunding campaigns are commonly created to aid individuals in times of need, they are also used to pursue a wide range of other goals. For example, crowdfunding accounts can be used to fund new products, business ventures, education, creative works, and more. Because of their popularity, crowdfunding campaigns not only have become more visible over the internet, they have also been seen more during litigation. Therefore, it is important to understand exactly how crowdfunding campaigns and sites may affect civil litigation.

Crowdfunding sites, such as GoFundMe, organize crowdfunding solicitations as campaigns. For the limited amount of time that a campaign is active, any individual on the internet can donate sums of money to the campaign. These sums can range from minimal amounts, such as a few dollars, to larger quantities, such as thousands of dollars. To encourage donations, creators of the crowdfunding campaigns can state a target goal of how much money they hope to raise. Additionally, campaign creators can write a narrative to explain what inspired the campaign’s creation and what the campaign ultimately aims to accomplish. Campaign creators typically have the option to include photographs and videos in the hopes of better connecting with potential donors. Furthermore, donor/creator interaction is possible during these campaigns. Donors can comment on the campaign and interact with the creator. In addition to communicating directly with donors, campaign creators can update the campaign’s photos, videos, and narrative throughout the campaign’s duration. This presents donors and potential donors with an opportunity to remain informed about the status of the crowdfunding matter. While these features are useful in a quest to raise funds, they can be just as useful in possibly winning, or sinking, a plaintiff’s or defendant’s case in the courtroom.

Crowdfunding’s Effects on Litigation

In today’s digital world, it is common practice for lawyers and insurance company representatives to regularly review an adverse party’s Facebook, Twitter, or other social media accounts. Because the social media user’s consent is not required in order to obtain this information, it can be accessed without an individual knowing. Similarly, crowdfunding sites often are examined by lawyers and insurance companies, often without the consent of the campaign’s creator. This means that it is critical that any party in litigation is careful about what it shows on a crowdfunding site platform, and carefully reviews such sites to ensure that the opposing party did not present any useful information online via a crowdfunding campaign. As this article will demonstrate, the images, narratives, target goal, and comment features of crowdfunding campaigns all present opportunities to uncover helpful, or harmful, information during litigation.

The Effects of Crowdfunding Images in Litigation

As the saying goes, “A picture speaks a thousand words.” Images uploaded onto a crowdfunding campaign may make a strong emotional appeal or business pitch to a potential donor, but they can also can broadcast a wealth of information about the state of an individual, business endeavor, or other legally relevant entity. Ultimately, this alone could affect the outcome of a case.

For example, a bedside hospital picture of a plaintiff, in a personal injury case, being posted in a GoFundMe campaign aiming to pay for the medical bills of that plaintiff, potentially could share an abundance of useful information to opposing counsel. From such a picture, opposing counsel could learn the extent of plaintiff’s injuries, the treatment plaintiff is receiving, and the quality of the treatment and facilities that plaintiff is surrounded by. This data could help to shape the opposing party’s case theory, defense, or willingness to settle. Furthermore, this information could affect the amount of damages that plaintiff receives. If an image suggests less harm was suffered than plaintiff’s allegations, the opposing party may be inspired to further contest the amount of damages plaintiff is seeking.

Ultimately, this type of potential litigation pitfall or advantage, depending on which party you are, is not only relevant to personal injury cases. This can be valuable to civil matters of all types. Therefore, it is critical that no matter the type of litigation, parties carefully reflect upon, upload, or inspect the images on a crowdfunding campaign.

The Effects of Crowdfunding Narratives in Litigation

The narrative section of a GoFundMe page, or most other crowdfunding sites, provides a party to litigation another opportunity to either obtain beneficial information about the opposition, or to carelessly divulge harmful data to the opposing party. The narrative section allows the creator of the campaign to explain the objective of the campaign and to provide relevant background information about the events or individuals who inspired the campaign. For instance, a narrative section in a GoFundMe campaign attempting to raise funds for an individual’s medical expenses may explain the diseases or injuries that caused the hospitalization, as well as how these diseases or injuries came to be. If the origin of the injuries or diseases is also the origin of litigation, this narrative section also can be an account of the very event which is the source of major litigation.

Campaigns that seek to start or expand a business or a business product/service often include narrative information detailing the nature of the business or product/service and the anticipated next steps in implementing the business expansion or the product’s/service’s creation. If the new business or product/service later becomes the source of litigation, the narrative’s explanation of the business plan, developmental process, or leadership may be impactful data that greatly advances or harms a party’s interest in litigation. Because what is said in the narrative section of crowdfunding campaigns can support or harm a litigation party’s case, it is essential that all parties seek out and closely monitor these sections.

The Effects of Crowdfunding Target Goals in Litigation

Crowdfunding campaigns allow the campaign creator to state a campaign target goal. This target goal identifies the monetary value that the campaign hopes to raise. Often, campaign creators explain the reasons for the target value in the narrative section of the campaign. While such explanation is not necessary, it may be helpful in motivating potential donors to contribute and to communicate the present state of success, or lack thereof, that a campaign is experiencing. While setting a target goal can be very helpful in soliciting contributions, there are potential risks that accompany target goals. By stating a target goal, a litigation party could be revealing the amount of money that may be sought in litigation. For instance, if a plaintiff in a personal injury case creates a GoFundMe campaign to raise money for medical bills, the target goal could be representative of the damages the party will seek. If the amount the plaintiff seeks in damages in court is substantially greater than the campaign target goal, than the opposing party may find the campaign target goal useful in contesting the amount of damages that the plaintiff should receive. Therefore, it is important that parties to litigation either act with caution when determining the target goal of a crowdfunding campaign, or inspect the opposing counsel’s campaign target goal to ensure that an opposing party’s damage claims are consistent.

The Effects of Crowdfunding Comments in Litigation

Lastly, crowdfunding campaigns have a commenting feature which allows donors, as well as the campaign creator, to communicate with each other about the campaign. While many comments in these campaigns are relatively harmless statements such as “good luck,” “get well soon,” “thank you,” or “my condolences,” it is important to note that comments can be made that are significant enough to change the outcome of litigation. It is possible that a donor can reveal enough information via his or her comment to lead the opposing party to pursue the donor as a witness. This can then lead to the non-campaign affiliated party uncovering new evidence that would not have been initially discovered. Not only can campaign comments allow for a litigation party to discover all new witnesses, but it can also allow a party in litigation to learn of the legal strategy or key facts that the campaign-affiliated party plans to utilize in their case.

For example, comment responses by the campaign creator to donor comments, which elaborate on the state of the individual or entity that is the focus of the campaign, may inadvertently reveal, to the opposing party, the campaign-affiliated party’s case theory, or facts that the campaign-affiliated party may plan to rely upon in trial. If discovered by opposing counsel, this could provide a “playbook” that greatly assists their efforts throughout litigation. Because of this potential inadvertent assistance to opposing counsel, campaign-affiliated litigation parties should carefully monitor third party crowdfunding campaign comments, as well as think carefully before leaving any comments themselves. Additionally, litigation parties opposing a campaign-affiliated party should always examine the comments in the opposing party’s crowdfunding campaign to ensure that they do not overlook any useful information that may exist in the comments.

Crowdfunding Case Example

Evidence related to crowdfunding has already begun to influence court cases. In United States v. Smith, a federal court in Washington denied a criminal defendant’s request to be released from prison pending sentencing. The judge found that the defendant was a flight risk due to his access to a crowdfunding account containing more than $100,000. Though the account was depleted prior to trial, the defendant failed to provide documentation that proved where the money went. Without this proof, the defendant remained a flight risk and had to remain in custody pending sentencing. As the popularity of crowdfunding continues to grow, evidence related to crowdfunding will influence more cases, both criminal and civil.

Crowdfunding & Litigation in a Nutshell

Like social media’s impact on human communications, crowdfunding campaigns have reshaped the way that donations are raised and solicited. Not only does this have ramifications on the internet, but it may also impact matters in the courtroom. Because of this potential impact, it is important that all litigation parties understand that crowdfunding campaigns can make—or break—a case. McNees attorneys regularly monitor developments in case law and the impact of technology and social trends on litigation.

* AJ Dean was a 2017 summer associate at McNees.

** Jo-Anne Thompson was a 2018 winter clerk at McNees.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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