In Court, Blogs Can Come Back to Dog the Writers

September 28, 2006

Use as evidence increases

Two months after being rear-ended by a Cambridge city councilor, Boston lawyer Edward A. Prisby -- infuriated that the politician might have used his connections to avoid a criminal investigation -- turned to his personal blog.

``What a hack," he wrote in an angry rant about councilor Anthony D. Galluccio, who witnesses said appeared drunk after the accident. ``I hope the weight of public opinion crushes his political career."

That posting on Prizblog came back to haunt him.

Called later as a witness at a hearing to determine whether there was enough evidence to charge the city councilor with drunken driving, Prisby was confronted with his blog entry by Galluccio's lawyers, who tried to discredit his testimony by arguing that he had a political ax to grind.

``I don't regret anything I wrote, and nothing I wrote was inaccurate," Prisby said in an interview. ``But I'm willing to concede that, if read in a certain way and with a certain tone, it hurt my credibility in that room that day."

First came the hard-learned lesson that e-mail can be used as evidence in legal proceedings. Now blogs -- basically, continuous public Internet journals -- are emerging as fair game in civil disputes, criminal cases, and government investigations, where they are used as evidence with growing frequency.

In March, a Plymouth doctor's blog was cited as proof that he continued to harass a female patient who had secured restraining orders against him.
In April, a Maine man was sued for allegedly posting defamatory blog entries in which he criticized an advertising agency's work for the state tourism office.
And in a high-profile national case, Apple Computer filed a lawsuit seeking the identities of people who allegedly leaked information about new Apple products to several bloggers.

``Blogs raise the same danger that e-mail raised a long time ago, which is that the informal aspects of them make people feel less cautious when they're writing," said Brigitte M. Duffy, a Boston employment lawyer who represents companies that have searched blogs to investigate allegations made by employees. ``But blogs present an even bigger risk because they're accessible to so many more people and they're so much more searchable."

As a result, ``there's an increasing risk that the government, when it's pursuing a criminal case, is likely to use the Internet as a way of collecting information about defendants," she said.

Blogs are also being cited in a growing number of civil cases, most commonly claims alleging libel, defamation, or invasion of privacy. Unlike e-mail, which usually remains private unless it is forwarded by a recipient, blogs are public by nature unless privacy settings limit their audience.

They are also easily findable by Internet search engines, in contrast to e-mails, which lawyers generally can obtain only through the discovery process.

And as long as the identity of the author can be proven -- not always a given, since 55 percent of bloggers use pseudonyms, according to a July report by the Pew Internet & American Life Project -- blogs are typically considered legitimate evidence in court.

With 12 million Americans now writing blogs and 57 million Americans reading them, according to the Pew study, their emergence in lawsuits is likely to grow in prominence, especially as bloggers are increasingly held to the same standards as professional journalists, such as being vulnerable to orders to identify their sources.

``It's no longer the case that you can say something and it will disappear into the ether, especially if you post it online, and looking for electronic information is absolutely standard practice for lawyers now," said Boston lawyer Ilan N. Barzilay, who frequently handles cases involving electronic issues and computer technologies.

Lawyers have been bringing up blogs in a diverse array of cases. The Apple lawsuit is pending, but a California state appeals court ruled in May that the company could not subpoena bloggers in an effort to determine who leaked news about Apple products.
Lynn D. Holdsworth, a Plymouth lawyer for the patient allegedly harassed by Dr. John A. Scorza, whose license to practice medicine was suspended in June 2005, said a judge allowed the doctor's blog entry to be admitted as evidence.
The lawsuit against Maine blogger Lance Dutson was dropped.

By maintaining a blog, ``it's like you have your own private newspaper or TV network where you can put your thoughts out there for the world, and that's the appeal of it," Barzilay added. ``But your statements can come back and be used against you."

That was the case for Prisby, 31, a civil litigator who started his blog in March 2005 as an outlet to muse on a range of topics, including football, movies, books, and politics.
In December he and two friends were rear-ended about 2 a.m. by Galluccio in the Financial District.
He assumed that the Boston police would investigate the accident. When there had been no action by February, he wrote what he later described as a ``pretty angry entry" on his blog in which he described Galluccio as ``really drunk."
Galluccio later denied the allegations to Channel 5.

His lawyer did not return calls for comment.

``It looks like just another politician with connections," Prisby wrote Feb. 22 , noting that Galluccio was running for state Senate. He expressed hope that publicity about the accident would ``somehow hinder his political career."

Eventually, however, media reports of the accident surfaced and Boston police launched an investigation, and in April Prisby was a witness at a probable cause hearing.
There, one of Galluccio's lawyers, David G. Eisenstadt, produced copies of Prizblog entries and asked Prisby if he had been politically motivated to testify against Galluccio.

Prisby -- who notes that he doesn't live in Galluccio's city and that he, like Galluccio, is a Democrat -- said in the interview that he came forward ``because I was just a guy who was rear-ended and was mad that the other guy seemed to be getting away with it."

But Prisby believes his blog entries damaged his reputation as a witness.
Ultimately, a Boston court official ruled that there was insufficient evidence to charge Galluccio. That left Prisby wondering whether his blogging had weakened the case.

``Of course I know my blog will be read by other people -- that's the point," Prisby said. ``But what I didn't take into account was that a certain tone could be read into my words, and I think when my words were parsed and taken apart and put back together, I came off in the hearing sounding like a mean and vindictive person."

The experience, which Prisby described as surprising and frightening, prompted him to stop blogging for more than two months. In June, he returned as a more thoughtful blogger, he said.
``I think my writing has become a little bit less frivolous and a little bit more careful, and I feel like I'm coming back to it a little wiser," he said.

``You want to consider before you post anything whether you're willing to stand by it. Admittedly, in this particular instance I did something I would not advise a client to do, which is make a statement about an accident or ongoing investigation. You've got to be very, very careful about that. And the cardinal rule is that if it seems like a bad idea, it probably is."