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Coyote Ugly calls Facebook to the stand

4:41 PM, Apr 24, 2011   |    comments
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How would you like it if a federal judge asked to see your photographs from a 21st birthday celebration?

As the parties and witnesses to a federal lawsuit scheduled to go to trial next week have learned, prospective employers and love interests aren't the only ones you have to worry about seeing your Facebook page.

The trial will provide the latest local example of the growing presence of social media in the courtroom and the limits of privacy in a wired world.

University of Kentucky student Brittany Barnes sued Coyote Ugly Saloon in 2009 in federal court, a year after she slipped and fell off the popular Second Avenue nightspot's bar. Barnes claims that the bar was wet and slippery and that the saloon -- famous for attractive female bartenders who dance on the bar and invite female customers to do the same -- should have done more to prevent the fall, which resulted in a skull fracture with brain hemorrhage and the loss of her sense of smell.

Coyote Ugly claims Barnes should have known the risks of climbing up on the bar and taken care not to hurt herself. Barnes was visiting Nashville to celebrate a friend's 21st birthday.

Facebook was unwittingly dragged into the legal fracas last year, when U.S. Magistrate Judge Joe B. Brown ordered the social networking website to produce photographs, messages, wall posts and other information on the profiles of Barnes and a friend who witnessed the accident. Coyote Ugly believes photographs and electronic communications from the night of the accident and for several months before and after could bolster its case.

"Facebook got involved because some of the witnesses were reluctant to give the defense attorney access to their Facebook pages," said Barnes' attorney, Rob Shelton of Sales, Tillman, Wallbaum, Catlett & Satterley in Louisville, Ky.

Facebook successfully argued that the Stored Communications Act prohibits it from disclosing members' materials.

A lesson on privacy

The issue didn't end there. The pursuit of information and materials from Barnes' and witnesses' Facebook profiles led to such long delays in the case that Brown admonished attorneys on both sides for failing to cooperate to produce materials maintained on Facebook.

He also said Barnes' friends' "resistance does raise the specter with the defendant that there is something there they want to hide." In the same order, Brown offered up a novel solution to the problem.

"In order to try to expedite further discovery regarding the photographs, their captions, and comments, the Magistrate Judge is willing to create a Facebook account," Brown wrote. "If (witnesses) will accept the Magistrate Judge as a 'friend' on Facebook for the sole purpose of reviewing photographs and related comments ... he will promptly review and disseminate any relevant information to the parties. The Magistrate Judge will then close this Facebook account."

The witnesses never responded to Brown's friend request.

Barnes' Facebook profile was sent to Brown under seal after she signed a consent form allowing Facebook to share the information. The two sides continue to argue about what materials are relevant to the case.

While he is confident that only materials that won't harm Barnes' case will be admitted for trial, Shelton said he has learned a valuable lesson about privacy in the digital age. He said that Barnes' Facebook page is similar to any other young woman's and that it contains both flattering and unflattering information and photos.

"I could just say generally speaking that ultimately, litigants, what they put on their Facebook is discoverable by the opponent. Once it hits the Internet, it's there forever," Shelton said. "She had to produce her entire Facebook page."

Social media also are becoming part of criminal cases. Last month, Rutherford County attorney Joe Brandon said the Twitter posts of Tina Stewart, a Middle Tennessee State University student stabbed to death March 2, support his position that the suspect, MTSU freshman Shanterrica Madden, killed Stewart in self-defense.

'Fertile ground'

Coyote Ugly's defense team has reviewed more than 2,000 photographs from Facebook, according to court records. Bryan Pieper of Drescher & Sharp in Nashville, who represented Facebook as a material witness in the case, said similar situations will become more common in litigation.

"People chronicle all sorts of details of their private lives on social networking sites, making comments about significant events, not to mention posting thousands of photographs of almost everything they do," Pieper said.

"With social networking, suddenly each of us owns his own printing press and a newspaper with worldwide distribution. People write about the most intimate details of their lives and personal crises in that newspaper. It's fertile ground for an opponent looking for admissions and contradictory statements."

Coyote Ugly hopes to hit pay dirt by using several Facebook photos of Barnes before and after the night of the accident. In court filings, the saloon argues that by showing photos of Barnes drinking alcohol before that night, it can show that she should have appreciated the risks of dancing on top of a bar after drinking.

"Everyone can perceive with their own intelligence the danger of getting on top of an elevated surface," Coyote Ugly's lawyer, Steven J. Meisner of Brewer, Krause, Brooks, Chastain & Burrow in Nashville, said at a pretrial conference Friday.

Photos of her drinking after the fall could call into question the cause of the symptoms she complained of after the accident.

The character issue

Shelton isn't buying it. He argues in court filings that Coyote Ugly is trying to attack Barnes' character by portraying her as a "party girl." He opposes including any photographs except those taken on the night of the accident.

For similar reasons, he opposes admission of any evidence related to Barnes' car accident at a Kentucky horse racing track less than two weeks after she slipped off the Coyote Ugly bar.

Coyote Ugly is fighting efforts to include evidence Shelton wants to use to bolster his argument -- that the company encourages a raucous atmosphere at its bars that leads to dangerous situations such as alcohol-consuming customers dancing on slippery bar tops.

Coyote Ugly opposes including evidence such as accident reports from other bar falls; information about how its bartenders routinely offer body shots, which involve a customer taking a shot poured atop a bartender's stomach, and penalty shots, in which a bartender pours liquor straight into a customer's upturned mouth and then spanks the customer; a video recorded by a private investigator on a different night at the bar; and Coyote Ugly's policy of allowing only women to dance on top of its bar.

In court filings, Shelton argues that Coyote Ugly essentially uses its female customers as unpaid entertainers to get male patrons to spend more money on alcohol.

Nashville's Coyote Ugly Saloon opened in December 2004 and is one of 12 Coyote Ugly bars in the U.S.

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