WHEN SOCIAL MEDIA BECOMES SOCIALLY AWKWARD

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WHEN SOCIAL MEDIA BECOMES SOCIALLY AWKWARD

Presented and Prepared by: Nicholas J. Bertschy

[email protected] Peoria, Illinois • 309.676.0400

Jennifer B. Johnson

[email protected] Edwardsville, Illinois • 618.656.4646

Heidi E. Ruckman

[email protected] Rockford, Illinois • 815.963.4454

Charles E. Timmerwilke

[email protected] Rockford, Illinois • 815.963.4454

Heyl, Royster, Voelker & Allen, P.C. PEORIA • CHICAGO • EDWARDSVILLE • ROCKFORD • SPRINGFIELD • URBANA

© 2016 Heyl, Royster, Voelker & Allen, P.C.

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SOCIAL MEDIA – TWO EDGED SWORD – DEFENDING THE INSURED Written by Heidi E. Ruckman – Rockford Office

I. SOCIAL MEDIA .............................................................................................................................................. B-4 II. DUTY TO PRESERVE OR NOT?................................................................................................................. B-4 III. WHO HAS TO PRESERVE THE EVIDENCE, OBLIGATION TO ASSIST, OR

SUPERVISE WITH THE PRESERVATION OF SOCIAL MEDIA .......................................................... B-6 IV. LITIGATION HOLD LETTERS TO ADVISE AN INSURED WHAT SHOULD BE

PRESERVED – SEND EARLY AND SEND OFTEN ................................................................................ B-7 V. ONCE IT IS DETERMINED THAT SOCIAL MEDIA SHOULD BE PRESERVED, THERE ARE

METHODS THAT CAN BE USED TO PRESERVE IT ............................................................................ B-7 VI. BETTER SAFE THAN SORRY IN LIGHT OF POTENTIAL SPOLIATION CLAIMS ........................ B-8

SOCIAL MEDIA INVESTIGATIONS Written by Jennifer B. Johnson – Edwardsville Office

I. STATISTICS ...................................................................................................................................................... B-9 II. WHAT CAN YOU LEARN? .......................................................................................................................... B-9 III. WHO SHOULD DO THE RESEARCH? .................................................................................................. B-10 IV. DOES IT FIT IN THE BUDGET? ............................................................................................................... B-11 V. TIPS AND CONSIDERATIONS ............................................................................................................... B-11 VI. CONCLUSION ............................................................................................................................................. B-12

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THE PLAINTIFF JUST DESTROYED SOCIAL MEDIA EVIDENCE—NOW WHAT? Written by Chuck E. Timmerwilke – Rockford Office

I. SET THE STAGE FOR EFFECTIVE RESPONSE TO DELETION OF SOCIAL MEDIA ................. B-13

A. Pre-Suit Investigation ............................................................................................................... B-13 B. Issuing Preservation/Retention Letter ................................................................................ B-14 C. Focused Discovery Requests .................................................................................................. B-14

II. ILLINOIS LAW ON SPOLIATION—AN ADVERSE INSTRUCTION .............................................. B-15

A. Spoliation: Martin v. Keeley & Sons, Inc., 2012 IL 113270 ........................................... B-15 B. Adverse Instruction—Tuttle v. Fruehauf Div. of Fruehauf Corp., 122 Ill. App. 3d 835 (1st Dist. 1984) ..................................................................................... B-16

III. THAT SOCIAL MEDIA ACCOUNT VANISHED—WHAT HAVE COURTS DONE IN CERTAIN CASES? .................................................................................................................... B-16

A. D.O.H. v. Lake Central School Corp., No. 2:11-cv-430, 2015 U.S. Dist. LEXIS 20259 (N.D. Ind. Feb. 20, 2015) ................................................... B-16

B. Lester v. Allied Concrete Co., 83 Va. Cir. 308 (2011), aff’d, 285 Va. 295 (2013) .......................................................................................................... B-17 C. Painter v. Atwood, No. 2:12-CV-1215, 2014 U.S. Dist. LEXIS

98669 (D. Nev. July 21, 2014)................................................................................................. B-17 D. Gatto v. United Airlines, Inc., No. 10-CV-1090-ES-SCM, 2013 U.S.

Dist. LEXIS 41909 (D. N.J. Mar. 25, 2013) ........................................................................... B-17 E. Crowe v. Marquette Transp. Co. Gulf-Inland, LLC, No. 14-1130, 2015 U.S. Dist. LEXIS 9198 (E.D. La. Jan. 20, 2015) ......................................................... B-17

IV. THAT SOCIAL MEDIA INFORMATION SEEMS TO HAVE VANISHED OR WON’T BE PRODUCED – WHAT’S THE PLAN OF ATTACK ................................................. B-18 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted.

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SOCIAL MEDIA – TWO EDGED SWORD – DEFENDING THE INSURED Written by Heidi E. Ruckman – Rockford Office

I. SOCIAL MEDIA

Although most of us are familiar with what social media is and how far it reaches, the question many are less aware of is what can happen to our social media sites when a lawsuit is filed? For those involved in defending lawsuits, we automatically view it is a tool that can be used to “get the plaintiff.” There are numerous examples of a plaintiff complaining that she is not able to work because of her back injury, but then posts photographs of herself dancing at a friend’s wedding or tubing on spring break.

However, the issue that is sometimes overlooked is what concerns we should have regarding an insured’s social media sites when it appears he or she may become or does become a defendant in a lawsuit. The social media sword that defense counsel uses against a plaintiff based on her Facebook posts might become a sword that will also be used against a defendant. II. DUTY TO PRESERVE OR NOT?

Illinois Supreme Court Rule 201 provides that a party may ask about the existence of evidence and obtain, through discovery, the location of documents and other tangible things. Petrik v. Monarch Printing Corp., 150 Ill. App. 3d 248 (1st Dist. 1986). All evidence that may be relevant to the plaintiff’s claim is subject to discovery. Petrik, 150 Ill. App. 3d at 258. However, there is no duty to preserve evidence before a suit is filed, threatened, or reasonably foreseeable, unless the duty is voluntarily assumed or imposed by a statute, regulation, contract, or other special circumstance. Trask-Morton v. Motel 6 Operating LP, 534 F.3d 672, 681 (7th Cir. 2008). In order to demonstrate an exception to the rule, the plaintiff must meet a two prong test:

Under the first, or ’relationship,’ prong of the test, a plaintiff must show that an agreement, contract, statute, special circumstance, or voluntary undertaking has given rise to a duty to preserve evidence on the part of the defendant. Under the second, or ‘foreseeability,’ prong of the Boyd test, a plaintiff must show that the duty extends to the specific evidence at issue by demonstrating that ‘a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.’

Martin, 2012 IL 113270, ¶ 27, citing Boyd v. Travelers Insurance Co., 166 Ill. 2d 188 (1995). Therefore, a simple request that a party preserve evidence is not enough to impose a duty to

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preserve absent some further special relationship. Andersen v. Mack Trucks, Inc., 341 Ill. App. 3d 212 (2d Dist. 2003). If two prong test is satisfied, the duty to preserve attaches when the plaintiff informs the defendant of a potential claim. Trask-Morton, 534 F.3d at 681. The duty to preserve is broad and encompasses any relevant evidence that the non-preserving party knew or reasonably could foresee would be relevant to the action. Danis v. USN Communications, Inc., No. 98 C 7482, 2000 U.S. Dist LEXIS 16900 (N.D. Ill. Oct. 20, 2000). Therefore, once the duty to preserve it is triggered, it is very possible that a defendant’s Facebook page, Twitter account, Instagram, or Google+ account, which contains information that is relevant to the plaintiff’s claims, must be preserved. Posts that may be deemed “relevant” could include information about what the defendant was doing in the 24 hours before the accident. For example, if the defendant posted that he had trouble sleeping or had been celebrating a friend’s birthday out on the town, it may demonstrate that he fell asleep at the wheel. Likewise, the timing of the posts may be relevant to the plaintiff’s claims. If it is discovered that the defendant posted a photo of himself just minutes before the accident occurred, it would support plaintiff’s claim that the defendant was engaged in distracted driving. If proven, this could lead to the possible imposition of punitive damages. One Illinois court allowed a defendant’s posts from her Facebook account to be introduced into evidence to demonstrate the manner in which the defendant and her male friend presented their relationship to the public. In re Marriage of Miller, 2015 IL App. (2d) 140530. In a petition filed by an ex-husband to terminate maintenance payments, the court allowed the introduction of various photo albums, comments, and posts made about the time the two spent together and vacations they went on. The ex-wife objected claiming they constituted hearsay. However, the court found they were not being offered for the truth of what the posts asserted (i.e., sharing Thanksgiving dinner, traveling together, or the relationship status), but rather demonstrated the way the defendant and her friend presented themselves as being in a relationship. Id. The posts were limited to those made by the defendant rather than comments of third party friends. Once an insured is aware of a plaintiff’s potential claims or is actually named in a lawsuit, the focus becomes whether the defendant is aware that he has a duty to preserve information that may be contained on his social media accounts. If the defendant is a sophisticated corporation, such as a trucking company that has dealt with the preservation of electronic log books and ECMs, it is likely the company would be aware of its duty to preserve electronic data. Yet, would the company think to ask its driver to maintain his social media accounts to ensure that any posts he might have made regarding the accident or events leading up to it are preserved? Most likely, outside of a company that routinely deals with litigation and has a document retention policy, an individual insured/defendant would not be aware of his duty to preserve this type of relevant evidence. For example, would a driver be aware of his possible duty to preserve emotional posts he made at the scene of the accident where he commented about the traffic light and how he could not see it because of the heavy rainfall?

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III. WHO HAS TO PRESERVE THE EVIDENCE, OBLIGATION TO ASSIST, OR SUPERVISE WITH THE PRESERVATION OF SOCIAL MEDIA

Illinois courts have yet to rule on whose duty it is to ensure a defendant preserves social media posts which are relevant to the litigation. However, other jurisdictions have started to tackle this issue. In Arizona, a district court held that attorneys must take affirmative actions to ensure their clients comply with the duty to preserve. Day v. LSI Corp., No. CIV 11-186-TUC-CKJ, 2012 U.S. Dist. LEXIS 180319 (D. Ariz. Dec. 20, 2012). In Day, the plaintiff filed suit against LSI Corporation claiming breach of contract, breach of the corporate handbook policies, breach of implied covenant of good faith and fair dealing, fraud, deceit, and misrepresentation (fraudulent inducement), constructive discharge, intentional and/or negligent infliction of emotional distress, and retaliation. Day, 2012 U.S. Dist. LEXIS 180319, at *2. The plaintiff claimed LSI induced him to leave a secure position with his former employer, but failed to follow through with its promises. Id. The preservation issues in this case involved company emails and documents on the company’s computer backup systems, rather than the preservation of social media sites. However, it is interesting that the court recognized that LSI’s counsel was aware of its client’s duties regarding spoliation of evidence as indicated in prior litigation and information posted by the firm on its website. The court held LSI was at fault for failing to preserve potentially relevant evidence. Id. at *40. Other courts have held that it is the party’s obligation to preserve evidence, not his counsel’s. In so finding, the court held “if a party has taken reasonable steps to preserve evidence, its attorney’s alleged failures to take additional steps should be of no consequence.” Centrifugal Force, Inc. v. Softnet Communication, Inc., 783 F. Supp. 2d 736, 742 (S.D.N.Y. 2011). However a few years earlier, a New York District court further examined the obligations of an attorney and held that an attorney has a duty to explain to his client what his obligation to preserve evidence is. Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). In Zubulake, the defendant willfully destroyed certain emails that were relevant to the plaintiff’s discrimination claims. Zubulake, 229 F.R.D. at 424. Plaintiff moved for sanctions against both the defendant and his counsel. Id. It was determined that defense counsel had notified the defendant of a litigation hold prior to the time the emails were destroyed, but the issue before the court was whether defense counsel could be sanctioned for their failure to adequately supervise the defendant’s production. Id. In reaching a decision, the Zubulake court stated that “[c]ounsel must oversee compliance with the litigation hold, monitoring the party’s efforts to retain and produce the relevant documents.” Id. at 432. The court observed that “[t]he tricky question is…[w]hat must a lawyer do to make certain that relevant information-especially electronic information-is being retained?” Id. at 433. In response, the court found that a lawyer must act reasonably, but “cannot be obliged to monitor her client like a parent watching a child. At some point, the client must bear responsibility for failure to preserve.” Id. In finding that the sanctions against defendant’s counsel were not warranted, the court reasoned that the duty to preserve and produce ultimately rests with the party. Once that duty is made clear to the party, either by court order or by instructions from counsel, that party is on notice of its obligations and acts at its own peril. Id. The court noted that although more diligent action on the part of counsel would have mitigated

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some of the damages caused by defendant’s deletion of emails, it was the defendant who actually deleted the emails in defiance of explicit instructions to the contrary. Id. at 436. Although Illinois courts have not imposed a duty on insurers to assist with the preservation of the insured’s social media sites which may be relevant to anticipated or pending litigation, it may be a good idea to issue a litigation hold letter making the insured aware of potential preservation duties. This would be especially important in a situation where an insurance company is attempting to settle the matter pre-suit and has not yet retained defense counsel who would normally issue the letter. IV. LITIGATION HOLD LETTERS TO ADVISE AN INSURED WHAT SHOULD BE

PRESERVED – SEND EARLY AND SEND OFTEN

Litigation hold letters are important tools that can be used to ensure a defendant properly retains relevant evidence. These letters can be sent out before a suit is filed during initial correspondence. Likewise, a litigation hold letter can be sent again when litigation is pending to remind the defendant of his continuing duty to preserve older documents as well as any newly created documents that may be related to the claim. These letters are typically issued by counsel upon being retained to defend the insured. However, there is no reason a well written hold letter could not also be sent out by the insurer when it receives notice of the potential claim. Generally, litigation hold letters advise the insured/defendant that the filing of the lawsuit triggers a responsibility to identify, protect and retain any records, documents, information, social media posts, or other electronic data which may relate, in any way, to the case. The letter warns that the failure to secure any such information, records, or documents and their subsequent loss or destruction of the information or documents poses a significant danger of a claim giving rise to a separate cause of action against him for spoliation. Likewise, it warns the insured of the possibility that various claims or defenses may be stricken and sanctions may be assessed if the evidence is not preserved. As such, the letter advises the insured that he must immediately take action and, in the case of a corporate defendant, notify all responsible individuals to take action. Care should be taken to identify, protect, retain, and maintain all such records, items, documents, social media sites, and any other information in his possession which may, in any way, be relevant to the litigation. The obligation to preserve all information, including relevant social media posts, begins immediately and continues during the course of the litigation. V. ONCE IT IS DETERMINED THAT SOCIAL MEDIA SHOULD BE PRESERVED, THERE ARE

METHODS THAT CAN BE USED TO PRESERVE IT

There are several ways that information can be secured by a user from his/her social media site. A user may download the information himself or third party vendors can be retained to do so. On Facebook, the user can select “download your information” which will create a zip file that

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contains timeline information, posts, and photographs. This will also download any ads the user has viewed and IP addresses that are logged into when the user accesses his account. Twitter has a similar process, but it is more limited. It will download all tweets posted to an account. In order to obtain this information, you must request the user’s archive. To obtain this information, an email request must be sent directly to Twitter at privacy@twitter with the subject line “request for own account information.” Twitter will then advise you of what additional information is needed. A subpoena can also be sent. However, both sites charge to respond to subpoenas. Third party vendors can be retained to download information from social media sites. These vendors utilize programs that are specifically designed for archiving and the collection social media content. Obviously, retaining a third party vendor would add costs to the defense budget. VI. BETTER SAFE THAN SORRY IN LIGHT OF POTENTIAL SPOLIATION CLAIMS

It is sometimes difficult to determine what might be relevant to litigation when the insured is just learning of the plaintiff’s potential claim. As discussed above, once a duty to preserve is triggered (or even likely), it may be a good practice to notify the insured of possible duties to preserve anything on social media accounts that could be considered relevant to plaintiff’s claim. By advising the insured from the outset of his duty to preserve evidence, he is made aware of the fact that the plaintiff may attempt to use any relevant past posts and any future posts against him. Hopefully, this will be enough to deter the insured from putting this type of post out there. Likewise, although an insured should never be advised to delete potentially relevant posts or tweets, it may be beneficial to have him confirm his privacy settings. Although a setting does not mean that the information contained on social media accounts will not be discoverable, it will at least force plaintiff’s counsel to take some affirmative action to discover it. Any posts or photographs which can be viewed by the “public” can be viewed by a plaintiff or his counsel without being the insured’s friend. In a world that is constantly moving on to the next best thing when it comes to social media, we can expect to see issues continuing to arise that relate to attempts made by parties to introduce evidence found on social media. Establishing a good plan now to address potential issues as they relate to an insured/defendant’s social media sites will ensure that the insured is aware that his social media sites are not private, that an insured’s posts may be discovered as evidence, and that steps should be taken to preserve relevant social media posts when litigation is anticipated, threatened, or a suit is filed.

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SOCIAL MEDIA INVESTIGATIONS Written by Jennifer B. Johnson – Edwardsville Office

I. STATISTICS

The prevalence of social media use indicates that searches of a plaintiff’s or claimant’s online presence should be researched. Consider these statistics. Almost two-thirds of American adults (65%) use social media.1 Further, there are no apparent differences based on gender or education.2 89 percent of internet users age 18-29 use social media, and 82 percent of those aged 30-49 do so. Even in the 50-64 age group, 65 percent of internet users have social media presence. Given these percentages, there is a good chance of gathering at least some information about your claimant. It makes sense to try. II. WHAT CAN YOU LEARN?

As anyone on Facebook knows, there are some Facebook users who seemingly can’t, or won’t, go to the gym, a movie, or eat at a restaurant without letting all their “friends” know by posting or “checking in.” Analyzing a claimant’s social media postings can provide a glimpse of the claimant’s daily life, from their own personal perspective. You might glean information about the facts and circumstances surrounding the claim, especially from posts or pictures taken at or immediately after the accident or incident. Or, you may learn about the claimant’s true physical condition, again from posts about daily activities, or pictures of the claimant engaged in activities he or she claims to be unable to do. Some examples our firm has experienced include: Both plaintiffs (a mother and son) in a case in which they alleged physical injuries and limitations, posted multiple pictures demonstrating no physical restrictions. The son talked about making the high school football and basketball teams. The mom posted a picture of herself weight lifting at the gym. In another matter, a plaintiff claiming total disability posted pictures of himself traveling the world and having a great time.

1 Andrew Perrin, Social Media Usage: 2005-2015, http://www.pewinternet.org/2015/10/08/social-networking-usage- 2005-2015/, Oct. 8, 2015 (last accessed May 3, 2016). 2 Social Networking Fact Sheet, http://www.pewinternet.org/fact-sheets/social-networking-fact-sheet/, Dec. 27, 2013 (last accessed May 3, 2016).

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In another case, the plaintiff had a both-bone forearm fracture that healed with some angulation. Her primary complaint at trial was that it was a cosmetic defect that she was afraid of how she would look and that her arm wasn’t “perfect” anymore. Just before trial, we found an online photo showing a new tattoo right over the area she claimed she was self-conscious about. She also posted pictures of her wearing sleeveless shirts and dresses, contradictory to her claim that she never wore short sleeves anymore. When confronted with those at trial, the jury awarded a defense verdict after only twenty-four minutes of deliberation. We have also used Facebook to locate missing parties or witnesses. In one case, the insured co-defendant could not be found through a formal skip trace, only to be located after a Facebook search. Our attorney found the co-defendant, sent a private message telling her she was being sued and she contacted her insurer within a few hours. Not only can social media be used to contradict or discredit an claimant’s allegations of physical injury, but social media content can also be used in defense. For example, we defended an employer who fired a nurse for a HIPAA violation, disclosing a patient’s private health information on line. The nurse disputed that was the reason for her termination, and alleged age discrimination was the real reason. Our attorneys were able to produce the nurses’ Facebook posts discussing a patient’s condition. We also handle many toxic tort malignancy cases, and online and social media searches are helpful in tracking plaintiffs. Social media postings may help determine whether a plaintiff is still living, and learn about their activity levels. We have even used a plaintiff’s relatives’ pages which included updates about the plaintiff’s health, leading up to the time of trial. Obituaries and Facebook can also give us personal and background information about the plaintiff’s work history or other exposures that may have caused or contributed to their diseases that were not disclosed in discovery. III. WHO SHOULD DO THE RESEARCH?

An issue that frequently arises is who should do this research? Should the attorneys representing the insured do the research, or have a paralegal or clerk do so? Or, does it make more sense to retain the services of an outside vendor? Some insurers might prefer to do their own checking, but we often hear from claims adjusters that their companies have blocked social media websites due to employee use during work hours. In that instance, you will have to allow your outside counsel, or another vendor to conduct the investigation. When answering the question of “who,” it also is important to consider the purpose for which you want the information. If you are preparing for the plaintiff’s deposition, it might make sense for the firm to internally conduct a search. Plaintiff could be confronted at the depositions with

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online postings and photos. Since the vast majority of cases settle without starting trial, that may be sufficient to gain leverage in negotiations. On the other hand, it can be tricky to have social media evidence admitted at trial. If your goal is to have the social media information admitted at trial, the use of an outside vendor who could better authenticate the information might be the better decision. In addition to authentication, you also need to be prepared to address relevance, hearsay, and best evidence arguments. Keep in mind as well; there are hundreds of social media sites. An outside vendor who specializes in online or social media investigations is more likely to understand the differences and intricacies of the various sites. To obtain the best results, an understanding of how the sites work is needed. IV. DOES IT FIT IN THE BUDGET?

The type of search will dictate the cost. A quick Facebook search may only take a short time. Keep in mind, though, that this information is ever-changing. You will want to regularly update your searches to capture any new information. If a carrier wants defense counsel to conduct the research, they should agree on the amount of time allotted and that will be approved. Such a search should not be considered overhead expense. This is work than can have a direct effect on the outcome of a case. Alternatively, there are several vendors who charge between $200 and $300 for a one time social media search. Such vendors offer to unearth “everything the internet knows” about claimants, from social media profiles and blog posts to news articles and court records.3 Deeper or ongoing searches can be more expensive. V. TIPS AND CONSIDERATIONS

Do consider early in the case whether social media information might be available and/or useful. Do not “friend” a claimant if you are not already friends. Be aware of the ethical implications involved in social media searches. You cannot misrepresent who you are, or obtain non-public information. Discuss with your outside counsel who will conduct the search, and the expected scope and expense.

3See e.g., Social Media Investigations by Expert Analysts, http://marketing.smiaware.com/special-offer-adwords-0?gclid=COHhzuLc_MsCFYGFaQodlX4DDQ (last accessed May 3, 2016).

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These same factors would apply to social media investigations of potential jurors. VI. CONCLUSION

Social media investigations can be useful in establishing information to contradict and refute plaintiff’s claims. Typically the cost is not prohibitive, but it will vary based on the needs in any given case. If a search is undertaken, it will need to regularly monitored and updated. A case-by-case decision will be needed, taking into consideration the cost of searching compared to the value of the claim.

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THE PLAINTIFF JUST DESTROYED SOCIAL MEDIA EVIDENCE—NOW WHAT? Written by Chuck E. Timmerwilke – Rockford Office

Fifteen years ago, to try and determine if a plaintiff claiming a debilitating back injury was on the up and up, one would be required to hire a private investigator for surveillance, who may or may not find plaintiff performing some physical activity that called into question the claimed injuries. Now, with social media the injured plaintiff may have a Facebook post showing him/her doing keg stands at a blow-out party. With the obvious damage to a plaintiff’s case if this evidence would surface in litigation, there is an obvious temptation for the plaintiff to remove, destroy, or attempt to conceal this evidence. So, in the example above the Facebook post is removed—NOW WHAT?? I. SET THE STAGE FOR EFFECTIVE RESPONSE TO DELETION OF SOCIAL MEDIA

A. Pre-Suit Investigation

The time period before a lawsuit is filed and, potentially, before a plaintiff has retained an attorney can be fertile ground to locate social media posts by a plaintiff. The social media information obtained at that point can be used in discovery if a lawsuit is filed, and can also be helpful in motions to compel or motions related to spoliation of evidence. Following are some key points in pre-suit investigation. Avoid “friending” a plaintiff on Facebook to access private material. This may be deemed unethical. If posts, tweets, etc., are favorable to the defense of the claim, screen shot and print out the page. Additionally, to provide a proper foundation, the person performing the search must be able to testify as to when the site was accessed, where it was accessed, and that the printout is a true and accurate copy of the information obtained on that date. There are increasing numbers of companies that will perform a complete search to determine any social media used by the plaintiff. Not only does this allow for a very thorough search of all potential posts, photos, videos, etc., on the internet, but also provides an independent third party to testify to the foundation related to the information. As social media has become more prevalent, there are many companies that perform these searches, and the cost has decreased. Any information obtained pre-suit will help focus discovery related to social media in the lawsuit. In addition, this information may help persuade a judge that serious sanctions are required if social media evidence is destroyed.

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B. Issuing Preservation/Retention Letter

Generally, the duty to preserve evidence arises when a party reasonably foresees that evidence may be relevant to issues in litigation. This duty to preserve evidence forms the basis for a potential spoliation of evidence claim. However, as with all legal standards, there may be room for argument as to what a party should “reasonably foresee” as relevant. To avoid a potential argument over this issue, a preservation (or “litigation hold”) letter can be sent to clearly define the evidence to be preserved. The following are considerations related to the preservation letter. If the case is pre-suit and plaintiff continues to use social media to place information on the internet that may be damaging to the plaintiff’s case, weigh the pros and cons of a preservation letter. While setting up a better spoliation claim, the preservation letter may simply serve to wake up the plaintiff and the posts will stop. This may also be a consideration once the lawsuit is filed, depending on the facts of the case. While the preservation letter must be broad enough to cover all social media and ESI, certain sites known to be used by the plaintiff can be emphasized in the letter. A plaintiff would have a difficult time explaining to a judge that he/she didn’t understand that preserving a Facebook account meant that it could not be deleted nor have posts removed. Also, if aware of specific use of social media such as Facebook or Twitter, specific instructions (coincidentally available on the internet through a Google search), can be supplied in the letter on how to preserve the account. This helps prevent an argument on a sanctions motion that the plaintiff accidentally deleted the account, kids deleted the account, an asteroid hit the house, etc.

C. Focused Discovery Requests

Social media discovery is subject to the same standard as any other discovery. In Illinois this standard is relevant or reasonably calculated to lead to relevant evidence. Key issues related to discovery requests include: Courts have held fairly consistently that “privacy” settings on social media do not create a reasonable expectation of privacy in relation to discovery. One of the obvious reasons is that the information is not truly private since the whole purpose of social media is to “share” information over the internet. Also, social media sites such as Twitter are specifically designed to reach a wide audience.

Despite the lack of expectation of privacy, courts will not likely compel production of “Plaintiff’s Facebook account and all archived information.” Requests of this nature have been deemed to be fishing expeditions and these requests have been denied. See Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012).

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In contrast to the overbroad requests for essentially all Facebook information, the Court in Wilkinson v. Greater Dayton Regional Transit Authority, No. 3:11-cv-247, 2014 U.S. Dist LEXIS 64522 (S.D. Ohio May 9, 2014), ordered the production of the following:

[A]ny notes, diaries, logs, journals, letters, electronic mail, text messages, calendars, Facebook postings, tweets, or other social media messages that relate or refer to your employment with the GDRTA, your alleged serious health condition, or your activities on days when you requested FMLA leave.

Wilkinson, 278 F.R.D. at 11, n. 3. If any pre-suit information is available, this allows for greater precision as to other social media information requested in discovery. Interrogatories, requests for admission, and deposition questioning can be directed to the authenticity of any posts, including that the post were made by the plaintiff and/or the photos of the plaintiff performing various activities are true and accurate depictions of the plaintiff. Interrogatories and deposition questioning can also be used to develop information as to any forms of social media used by the plaintiff, including details as to how long the accounts have been active. Another useful area of questioning is to determine the identities of several close “friends” if the plaintiff has a Facebook account. Even if a Facebook account is completely deleted at some point, comments or photos shared with friends may still be available as public information on Facebook. II. ILLINOIS LAW ON SPOLIATION—AN ADVERSE INSTRUCTION

A. Spoliation: Martin v. Keeley & Sons, Inc., 2012 IL 113270

Under Illinois law, spoliation of evidence is a type of negligence. A plaintiff must prove that: (1) defendant owed the plaintiff a duty to preserve the evidence; (2) defendant breached that duty by losing or destroying the evidence; (3) the loss or destruction of the evidence was the proximate cause of the plaintiff’s inability to prove an underlying lawsuit; and (4) as a result, the plaintiff suffered actual damages. Illinois’s general rule is that there is no duty to preserve evidence. In Boyd v. Travelers Ins. Co., 166 Ill. 2d 188 (1995), the court promulgated a two-prong test, which a plaintiff must meet in order to establish an exception to this general rule. First, a plaintiff must show that an agreement, contract, statute, special circumstance, or voluntary undertaking has given rise to a duty to preserve evidence. Second, a plaintiff must show that the duty extends to the specific evidence at issue by demonstrating that a “reasonable person in the defendant’s position would have foreseen that the evidence was material to a potential civil action, Boyd, 166 Ill. 2d at 195. These prongs are called the relationship and foreseeability prongs, respectively.

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B. Adverse Instruction—Tuttle v. Fruehauf Div. of Fruehauf Corp., 122 Ill. App. 3d 835 (1st Dist. 1984)

Illinois’s adverse inference instruction, IPI Civil 3d No. 5.01, is warranted when it can be established that: (1) the evidence was under the control of the party and could have been produced with the exercise of due diligence; (2) the evidence was not equally available to the adverse party; (3) a reasonably prudent person under the same or similar circumstances would have produced the evidence if he believed it would have been favorable to him; and (4) there was no reasonable excuse for the failure to produce the evidence. The instruction is not warranted when the evidence that the party failed to produce would have been merely cumulative of already established facts. Whether or not to issue the instruction is within the sound discretion of the court. III. THAT SOCIAL MEDIA ACCOUNT VANISHED—WHAT HAVE COURTS DONE IN CERTAIN CASES?

As noted above, proper investigation, a focused hold letter, and focused discovery once a lawsuit is filed, will help in obtaining information that has been destroyed or obtaining sanctions, including an adverse instruction for spoliation of evidence. Considerations need to be made as to what remedy is best, based on the facts in the case, and what method should be used to retrieve the information. The following are different approaches that have been used by courts in dealing with a plaintiff that has destroyed social media evidence. This is an expanding area of the law as the first reported case involving sanctions in the social media arena was reported in 2011.

A. D.O.H. v. Lake Central School Corp., No. 2:11-cv-430, 2015 U.S. Dist. LEXIS 20259 (N.D. Ind. Feb. 20, 2015)

In this case a student sued the school alleging he was harassed by students, causing physical and emotional damages. Defendants requested plaintiff’s social media profiles through written discovery, which was objected to by plaintiff. A motion to compel was granted in part and plaintiff was ordered to not delete any items from Facebook. During his deposition, defendant presented a Facebook post that was not included in his production response. Plaintiff admitted that he may have deleted some posts prior to the court order requiring him to preserve the material. Defendant pursued a motion for sanctions and requested that a jury be given an instruction that they should presume an adverse inference that these deleted posts would have been detrimental to plaintiff’s case. The court found that the plaintiff had not deleted information in bad faith and refused an adverse inference instruction. The court also noted that social media information may have been deleted to avoid embarrassment as opposed to destroy adverse evidence.

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This case points to the importance of having a litigation hold letter in place early in the case. Additionally, any prior posts have already been obtained, which point to negative evidence can be used to argue that embarrassment was not the reason for the deletion.

B. Lester v. Allied Concrete Co., 83 Va. Cir. 308 (2011), aff’d, 285 Va. 295 (2013)

The court in this case sanctioned both the plaintiff and his attorney for spoliation of social media evidence. The plaintiff’s attorney through his paralegal helped the plaintiff “clean up” his Facebook page, which consisted of deleting 16 pictures and deactivating the page. The pictures were discovered by forensic experts, but the court imposed monetary sanctions. Monetary sanctions can help defray the cost of utilizing forensic experts to retrieve materials. However, a deactivated account on Facebook is not permanently deleted, and the court could have likely ordered the plaintiff to re-establish the account and provide these materials.

C. Painter v. Atwood, No. 2:12-CV-1215, 2014 U.S. Dist. LEXIS 98669 (D. Nev. July 21, 2014)

Plaintiff in this case alleged that she was sexually assaulted in conjunction with her employment. The wife of the defendant claimed that she saw posts from the plaintiff describing how much she enjoyed her employment, and that these posts were later deleted. Defendant moved for sanctions for spoliation of evidence, and an adverse inference instruction to the jury. Based on the assertion of defendant’s wife and no specific denial by plaintiff, the court imposed an adverse inference sanction for spoliation of evidence.

D. Gatto v. United Airlines, Inc., No. 10-CV-1090-ES-SCM, 2013 U.S. Dist. LEXIS 41909 (D. N.J. Mar. 25, 2013)

Plaintiff voluntarily gave defense counsel his Facebook password during a settlement conference being conducted by the court. Defense counsel attempted to log into the account and print portions of the profile page. When this occurred, Facebook sent plaintiff an alert indicating the account was being accessed from a different ISP address. In an attempt to deactivate the account, plaintiff actually deleted the account and all information was deleted. The court found that plaintiff had failed to preserve relevant evidence and granted a sanction motion requesting an adverse inference instruction.

E. Crowe v. Marquette Transp. Co. Gulf-Inland, LLC, No. 14-1130, 2015 U.S. Dist. LEXIS 9198 (E.D. La. Jan. 20, 2015)

This case is a classic for a plaintiff attempting to evade and eventually attempting to destroy social media evidence. Crowe sued his employer for work injuries claiming an accident at work that had resulted in permanent injuries. Unfortunately, Crowe also posted on Facebook that he had actually hurt himself on a fishing trip. Marquette somehow obtained this post (the method is not described in the case) and then requested additional Facebook posts.

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Plaintiff objected with a laundry list of issues including: his account had been hacked, the account was not his because there was a capital ‘W’ in the last name in the post, and that he did not presently have a Facebook account. He was accurate on the last account because he had deactivated the account 4 days after he received the discovery request. The court was not amused with Crowe’s explanations and obfuscations, eventually ordering that he produce the entire Facebook account rather than the smaller amount that had actually been requested in discovery. IV. THAT SOCIAL MEDIA INFORMATION SEEMS TO HAVE VANISHED OR WON’T BE PRODUCED – WHAT’S THE PLAN OF ATTACK

If the plaintiff objects to production of certain social media evidence, a motion to compel should be pursued. If focused interrogatories and a production request have been drafted, there is a greater potential that the court will grant a motion to access private information on the social media page. However, as noted earlier, simply because the discovery related to social media evidence, the court must still be persuaded that the information sought is relevant or reasonably calculated to lead to relevant evidence. Any public social media information previously obtained can also be used to persuade the court that the private information is relevant. For example, a prior public post of an injured plaintiff waterskiing can be used to suggest that the private information objected to is likely relevant. In either a motion to compel or a motion for sanctions due to spoliation, diffuse the likely plaintiff argument that this is “private” information by noting that courts have previously held that there is not a privacy right implicated with social media sites regardless of individual privacy settings. In some instances such as Twitter and You Tube, the object is obtaining views. Again, the whole purpose of social media is to share the information in some way. Privacy is a locked journal that no one else reads (and if this contained information related to claims in the lawsuit would likely be discoverable). If it appears that some destruction of social media evidence has occurred or that there has been less than a full disclosure, determine what sanctions you really want—production of the documents, an adverse inference, striking certain damages alleged in the complaint, etc. Depending on the case and the gut feeling as to what more may be contained on the social media site, an adverse inference could be more beneficial than obtaining additional posts that may not really be a “smoking gun.” If it appears that there has been destruction of social media evidence, consider retaining a forensic or social media investigator to try and obtain information related to plaintiff’s social media activity. Even if a plaintiff deletes a Facebook account, there is information that still may be public. For example, if certain friends of plaintiff do not have privacy settings, information may be obtained. In fact, the Facebook instruction on deleting an account specifically states: For

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example a friend may still have a message from you even after you delete your account. That information remains after you delete your account. There are certain searches through Facebook graph search that may allow obtaining information after an account has been deleted. Again, there are many companies that perform these types of searches. These methods can potentially obtain information from a deleted account. Additionally, if the account has merely been deactivated and the defendant is seeking sanctions or further production, this information can be used to establish the relevancy of obtaining information that is not shared publicly on social media. The more egregious the conduct of the plaintiff in destroying evidence or attempting to cover up evidence of this destruction, the more likely the court will impose severe sanctions or require complete production of the entire social media account. There is a potential that even if social media evidence has been completely deleted that it can be recovered through a computer or phone forensics expert’s examination. This is obviously a more expensive alternative and full recovery of information may not be possible. If this type of recovery is required, request that as a sanction the plaintiff be required to pay for the recovery, and if the plaintiff fails to pay, that an adverse instruction be given or certain claims made by the plaintiff be stricken. Seek an order early in the case instructing a plaintiff to preserve social media evidence if the defendant is aware of social media activity. This may clearly slow or eliminate further social media use, but makes a much stronger argument for sanctions and spoliation if any evidence disappears. Be careful though, because what is good for the goose is good for the gander, and the plaintiff may seek to make the order reciprocal.

Don’t let the technology cloud the issue. Destruction of evidence is destruction of evidence, even if it only required a couple computer clicks. If a hold letter was in place and discovery requests had been made before the destruction, an argument to the judge could be: your honor, if a party who was told not to burn hundreds of pictures in their possession that were stored at his house, was sent a request to get those pictures, and then went out in their backyard and burned them in a bonfire, would we really be discussing whether that was an effort to destroy evidence?

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Nicholas J. Bertschy

- Partner

Nick's practice involves primarily the defense of cases of serious personal injury, often involving catastrophic loss, and wrongful death. He has earned a reputation as a creative, versatile and challenging litigator. Over the years, Nick has had the unique privilege of training under some of the firm’s most outstanding litigators, collaborating with top members of the Illinois and national defense bar, and opposing premier plaintiff’s firms. He is Chair of the firm's Casualty/Tort Litigation Practice. Nick has spent his entire legal career with Heyl Royster, beginning in 1981 in the Peoria office. His focus has been defense of personal injury and wrongful death civil litigation. He has successfully sole/first-chaired high exposure cases to verdict and has obtained many outright dismissals and summary judgments. He is a forceful and effective negotiator and has advantageously mediated and resolved many difficult cases. Nick’s areas of practice include healthcare malpractice, nursing home and LTC litigation, product liability, construction liability, premises liability, vehicular accident, and liquor liability. In the healthcare field Nick regularly defends physicians, dentists, hospitals, clinics, and nursing homes. Medical issues involved in his cases have included obstetrics, neonatology, anesthesiology, gastroenterology, nephrology, ophthalmology, orthopedics, emergency medicine, pathology, psychiatry, psychology, neuropsychological testing and assessment, plastic surgery, epidemiology, internal medicine and family practice, oral surgery, and TMJ. Nick enjoys issues involving complicated or unique medical causation. He also represents product manufacturers of medical equipment, motor vehicles, CNC drill press, routers and milling machines, construction equipment, lifting slings, mining equipment, off-road tires, and food service industry equipment. Nick chairs Heyl Royster’s Liquor Liability Practice Group, and is recognized among his peers for his knowledge in Illinois Liquor Liability and Dramshop Law. Nick is a strong believer in the concept of Lawyers Giving Back, and has a committed record of charitable endeavors in the local community, with his strong involvement and participation in United Way Pillars

Society, St. Jude's Children's Research Hospital, Children's Hospital of Illinois, UIF/Pediatric Resource Center, Boys and Girls Clubs of Peoria, Peoria Area Food Bank, Peoria Historical Society, Peoria Art Guild, and Opera Illinois League. In the legal community, Nick was honored to serve for nine years on the Board of Directors of the Illinois Bar Foundation, the charitable arm of the Illinois State Bar Association. In that capacity he also served as the long-standing chair of the Long Range Planning Committee and was responsible for many innovations leading directly to rapid growth of membership and advancement of financial capacity of the Foundation to carry out its charitable mission. Nick was also a Founding Member of the Peoria County Bar Foundation, the charitable arm of the Peoria County Bar Association. He is a substantial supporter of Prairie State Legal Services, which provides legal services to the indigent. He is a supporter of Court Appointed Special Advocates [CASA] representing abused and neglected children. Nick was among a select group of lawyers requested to serve on the on the Steering Committee for the very successful Lawyers Feeding Illinois campaign, and he also chaired the Heyl Royster team, which finished first in the Mega Law Firm division of that state-wide competition. As part of his legal diversity efforts, Nick is a Founding Contributor of the William H. Neukom Fellows Research Chair in Diversity and Law at the American Bar Foundation. Nick is a leader of the firm's Technology Committee with experience in: Implementation of Legal Practice/Case/Matter Management Systems, Data Conversion and Transition, Customization and Application Development, Project Management, Calendar/Docket, Client and Matter Intake, Conflicts, Contacts, DMS/Document Management Systems, Matter Security, Automated Workflow, CRM/Client Relations Management, Business Intelligence, Time Capture, Billing and Accounting, Financial Management, Data Mining and Reporting, Dashboard and Analytics, Metrics, Invoice Management, eBilling, Mobile Device Law Practice, DR/Disaster Recovery, Cost Control and Recapture, Digital Dictation Systems, Voice to Text, HR and Resource Management Solutions, Hardware Architecture - Blade Server, Citrix and Terminal Server Solutions, WAN and LAN

Learn more about our speakers at www.heylroyster.com

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Bandwidth Enhancement and Optimization, and Backup D2D2T/Restoration.

Significant Cases Barron v. Ford Motor Co. - Jury Trial, U.S.D.C. -

Central District of Illinois. We served as co-counsel with Baker & McKenzie on a product liability action in which the plaintiff was a passenger in a Ford Escort which was being driven by her sister. Plaintiff, a 27-year-old who has paraplegia from the waist down, was ejected from the vehicle during a rollover accident. She claimed the sunroof and the vehicle's retention system were defectively designed, that Ford breached its implied warranty of merchantability and the vehicle was not crashworthy. Plaintiff asked the jury for between $6 and $7 million. Result: Not guilty.

Rupe v. Dr. X - Jury Trial, Peoria County. Medical Malpractice Wrongful Death Action. The decedent was an otherwise healthy 66-year-old male who had entered the hospital for an elective left knee arthroplasty. On the first post-operative day, the patient's blood profile returned a serum sodium level that was slightly low. Less than 24 hours later, the patient developed a significant confusion and the defendant doctor gave a verbal telephone order to stop the narcotic medication, but he did not order any electrolyte testing. Thereafter the patient suffered a seizure, vomited, and went into cardiac arrest. A Code Blue was called, during which the serum sodium level was found to be 120, a significant hyponatremia. Plaintiff alleged that the patient died as a result of a hyponatremic seizure and defendant doctor was negligent for not having conducted appropriate follow-up testing. The decedent left a widow and two adult children, in their early to mid-40's at the time of his death. Plaintiff asked the jury for $950,000.00 for loss of society and relations for the widow and $250,000.00 each for loss of society for the two children. Result: Not guilty.

Public Speaking “Dramshop Liability”

Peoria County Bar Association (1990) “Dramshop Update”

Peoria County Bar Association (2003) “Addressing Damages In Opening Statement

For The Defense” Peoria County Bar Association (2007)

“Evidenced-Based Risk Control in Nursing Practice” Illinois Nurses Association (2011)

Professional Recognition Martindale-Hubbell AV Preeminent Selected as a Leading Lawyer in Illinois. Only

five percent of lawyers in the state are named as Leading Lawyers.

Named to the Illinois Super Lawyers list (2008-2016). The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation.

Professional Associations Illinois State Bar Association State Bar of Wisconsin American Bar Association The Bar Association of the Central and

Southern Districts of Illinois Peoria County Bar Association American Bar Foundation (Fellow) Peoria County Bar Foundation, Founding

Member Illinois Association of Defense Trial Counsel

(IDC) Illinois Tort Law Section Council 1990-1993 Illinois Bar Foundation (Board of Directors,

1996-2005), Pillar of Foundation, First Pillar of Profession

2012-2013 Steering Committee Lawyers Feeding Illinois

Abraham Lincoln Court (Master) Appointed by ISBA President Richard Felice to

the ISBA Task Force on the Impact of Law School Curriculum and Debt on the Future of the Profession (2014-2015)

Court Admissions State Courts of Illinois and Wisconsin United States District Court, Central District of

Illinois United States Court of Appeals, Seventh Circuit United States Supreme Court

Education Juris Doctor (With Honors), University of

Wisconsin Law School, 1981 Bachelor of Science-Finance (magna cum

laude), University of Illinois College of Commerce, 1978


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Jennifer B. Johnson

- Partner

Jennifer focuses her practice on the defense of asbestos and toxic tort claims, including the defense of products and premises liability claims arising from occupational and environmental exposures. Her practice includes a special emphasis in representing companies not traditionally involved in asbestos litigation. She also spends a significant portion of her time on agricultural arbitration matters. She represents corporate defendants in grain contract defaults and other disputes before the National Grain and Feed Association. From 1996 to 2002, Jennifer practiced in Heyl Royster's Edwardsville office where she handled the defense of a variety of cases, including insurance defense, products liability, professional liability and toxic tort matters. From 2003 to 2006, Jennifer practiced law in Memphis, TN, where her practice focused on the representation of employers and management in employment and labor matters. During her time in Tennessee, Jennifer presented several seminars on employment law-related issues. Jennifer returned to Heyl Royster as an Of Counsel attorney in 2007, and became a partner with the firm in 2013. Jennifer serves on the Madison County Bar Association's Student Internship Committee, which provides high school students legal internship opportunities. She also serves on the firm's Diversity Committee. Significant Cases Laurel Hiatt v. Higbee, Inc., et al., Madison

County, Illinois, 12-L-1553 - This was a personal injury action brought by a living plaintiff alleging asbestos-related mesothelioma. The client objected to jurisdiction in Illinois, asserting it did not "do business" in Illinois as contemplated by the Long-Arm statute. The issue before the court involved whether this manufacturing defendant, which had some sales in Illinois but no other Illinois contacts, could be subject to jurisdiction in Illinois for plaintiff's alleged asbestos-related injury, when the alleged injury occurred outside of Illinois. In calendar year 2012, the firm's client had sales

of $260,000 (less than 2% of its total sales) in Illinois. In finding that there was no general jurisdiction over the defendant, the court noted that sales alone do not justify exercising personal jurisdiction over the out-of-state defendant. The court also commented that the client's sales in Illinois were insignificant vis-à-vis their relation to the percentage that the Illinois' population represents to the rest of the country. Upon the Court's ruling, plaintiff's counsel agreed to voluntarily dismiss the client from 30 additional cases. This result effectively removed the client from asbestos litigation in Madison County, IL.

Eduard Alexander Gutierrez v. Nathan Etters, 07 L 20, Franklin County, IL - Plaintiff claimed permanent bilateral knee injury from this auto accident, in which defendant admitted liability for the accident but denied the damages.

Long v. Cottrell, Inc., 982-10046, U.S.D.C., E.D. Mo - Plaintiff was an auto hauler who allegedly sustained a back injury while untying a truck on a car carrier made by Cottrell. Defense verdict.

VanHoose v. Phillip Environmental - Structural Work Act case involving whether client provided an unsafe workplace when plaintiff used a man lift to move a steel plate, and whether our client was "in charge of plaintiff's work;" trial lasted 5 days. The result was plaintiff's verdict - 90% fault of third party defendant, 3% to property owner and 7% to our client, a subcontractor on the premises.

Brown v. Crabtree - Auto/pedestrian collision case involving catastrophic injuries to plaintiff. Result was plaintiff's verdict, reduced by 50% for plaintiff's contributory negligence. Net award was $750,000. Case was tried on a high/low agreement, this number fell within that range.

Publications "Current Issues in Illinois Law," published by

Employment Law Update (2007) Professional Recognition Martindale-Hubbell AV Preeminent


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Professional Associations Illinois State Bar Association Defense Research Institute Madison County Bar Association

Court Admissions State Courts of Illinois and Missouri United States District Court, Southern District

of Illinois Education Juris Doctor (summa cum laude), Southern

Illinois University School of Law, 1996 Bachelor of Arts-Psychology (summa cum

laude), Southern Illinois University, 1993


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Heidi E. Ruckman

- Partner

Heidi joined the firm's Rockford office in 2006 and became a partner in 2012. She concentrates her practice in civil defense litigation, including premises and auto litigation, business related disputes, and the defense of toxic tort and asbestos claims. She began practicing law in 2000 and has experience in the areas of personal injury defense and related insurance matters. She has represented corporate clients in contract and business related disputes. These clients have included mortgage companies, construction companies, excavation companies, gas station owners, disposal companies, farm chemical companies, automobile dealerships, and real estate companies. Heidi has also represented municipalities in various litigation matters and zoning issues. She has tried a number of these cases to verdict. Public Speaking “Liability for Distracted Driving”

Heyl Royster 30th Annual Claims Handling Seminar (2015)

“Speedy Payments of Settlements Under the New Law” Winnebago County Bar Association (2014)

“Write that Check-Payments of Settlements” 29th Annual Claims Handling Seminar (2014)

“Premises Liability Update” 27th Annual Claims Handling Seminar (2012)

“Premises Liability Case Updates” Winnebago County Bar Association (2011)

“Building a Solid Foundation for Defense: Statement Taking Techniques” 26th Annual Claims Handling Seminar (2011)

Professional Associations Winnebago County Bar Foundation, Board of

Directors Winnebago County Bar Association (Chair, Trial

and Appellate Section) Illinois State Bar Association Winnebago County Arbitrator Defense Research Institute (DRI) Association of Defense Trial Attorneys (ADTA) American Bar Association (Vice-Chair,

Commercial Transportation Committee) Court Admissions State Courts of Illinois United States District Court, Northern District of

Illinois Education Juris Doctor, The John Marshall School of Law,

2000 Bachelor of Arts-Political Science with an

emphasis on public law (summa cum laude), Northern Illinois University, 1997


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Charles E. Timmerwilke

- Partner

Chuck Timmerwilke concentrates his practice in a wide range of civil litigation, including product liability, professional liability, construction and transportation cases. He has tried numerous cases to verdict throughout Northern Illinois, and has extensive experience in both arbitrations and mediations. He is a certified arbitrator through the Winnebago County Circuit Court. Prior to joining the firm in 2005, Chuck first worked as an associate for a large defense litigation firm following law school and then was a partner in his own firm in Rockford. Chuck has lectured and made presentations at the Illinois State Bar Association, Winnebago County Bar Association, and to industry groups on defense strategies and litigation tactics. In addition, he has been a guest lecturer for the trial advocacy class at Northern Illinois University School of Law. Chuck is a past chair of the Trial Section for the Winnebago County Bar Association. Public Speaking “Voir Dire”

Winnebago County Bar Association's Trial/Appellate Section's Seminar (2014)

“You’ve Been Served: How to Help Your Organization Understand and Defend a Lawsuit” St. Mary’s Occupational Health & Streator Chamber of Commerce (2013)

“Ready v. United Goedecke: All or Nothing for the Last Man Standing” Winnebago County Bar Association Trial Section Seminar (2011)

“Closing Argument” Winnebago County Bar Association Trial Section Seminar (2008)

“The Death of Common Sense? Expert Testimony, the Admission of Photographs, and the Expansion of Voykin” Northern Illinois Adjusters Association (2005)

“Defending Damage Evidence In An Automobile Case: A Trial Perspective” Illinois State Bar Association Law Ed Series (2003)

“Amended Supreme Court Rule 213: What Does It Mean?” Illinois State Bar Association Law Ed Series, Rockford (2002)

Professional Recognition Martindale-Hubbell AV Preeminent Selected as a Leading Lawyer in Personal Injury

Defense Law: General; Products Liability Defense Law. Only five percent of lawyers in the state are named as Leading Lawyers.

Professional Associations Illinois Association of Defense Trial Counsel

(IDC) Illinois State Bar Association Winnebago County Bar Association (Past Chair

Trial Section) Court Admissions State Courts of Illinois United States District Court, Northern and

Central Districts of Illinois Education Juris Doctor (magna cum laude), Valparaiso

University School of Law, 1991 Bachelor of Arts-History (summa cum laude),

Carthage College, 1988


WHEN SOCIAL MEDIA BECOMES SOCIALLY AWKWARD

Documents