I do not practice criminal law, but I was happy to take the case of a three-year old golden retriever I’ll call Rex who was accused of ambushing an older couple and savagely attacking their Jack Russell terrier.  I’ve mentioned in previous blogs that I am the son of veterinarians and have grown up around and worked with a variety of breeds.  I’ve also handled several civil dog bite cases for human victims.  This was the first time I had ever heard of a golden retriever attacking anything other than its supper dish. 

My client explained to me that, in a moment of haste, she apparently did not fasten the latch to the fence that enclosed the backyard where Rex and his female companion, Sophie, stayed in nice weather.  She did not know they had left the backyard until a police officer arrived at her door.  The complaining couple, neighbors who lived just down the road, were the only witnesses to the alleged attack.  In the statement I obtained from the investigating detective, the couple alleged that Sophie approached them alone from the front and they verbally shooed her away.  They claim Rex jumped them from behind knocking both of them to the ground.  He then went after the Jack Russell.  The neighbors had bruised knees and a puncture wound on the Jack Russell to corroborate their story.  After completing his investigation, the detective initially indicated he would charge my client only with failing to confine Rex to her property.  However, the neighbors wanted my client to be cited for harboring a “dangerous dog,” and so she was. 

Under Pennsylvania’s Dog Law, a dog may be judicially labeled dangerous if it severely injures another animal without provocation(defined as broken bones or an injury requiring multiple stitches), attacks a human without provocation(whether causing injury or not), or has been used in the commission of a crime.  If a dog is found to be dangerous, the consequences can be quite costly to the owner.  There is the initial fine of not less than $500.00.  More burdensome are the requirements of constructing a special enclosure for the dog on the owner’s premises with a concrete slab, chain link fencing, and a locking gate, and notification to one’s insurance company.  The cost of constructing such an enclosure and the increase in insurance premiums often lead many owners to choose euthanizing the dog instead.  Not surprisingly, my client was quite upset over the possibility of having to make a choice between thousands of extra dollars she doesn’t have to spend and Rex’ life.

Optimistically believing that no one could find a golden retriever dangerous, she represented herself and Rex in front of the local magistrate and lost.  She appealed the citation to the county Court of Common Pleas and then called me.  Rex and his companion’s inability to testify gave us a decided disadvantage.  (Dr. Doolittle was not available to serve as an expert witness).  Nevertheless, since a conviction under the Dog Law requires the same “beyond a reasonable doubt” burden of proof required in any criminal case, I was confident I could create doubt in the judge’s mind as to whether an attack actually occurred.  I believe Rex and Sophie, seeing the neighbors and their dog coming up the road, simply went to say hello.  I’d bet money the Jack Russell went after Rex or Sophie starting the fracas.  Jack Russells are an entertaining and athletic breed, but can have a serious attitude problem especially towards other dogs.  My client told me a few weeks earlier the same Jack Russell had nearly choked itself trying to get off its leash and after Rex and Sophie as they walked by their neighbors’ home.  I’d bet more money the couple fell over the fighting dogs or got tangled up in the Jack Russell’s leash.

Fortunately, I did not have to convince a judge of Rex’ innocence.  The young assistant district attorney assigned to prosecute Rex also had not encountered anything worse than wet kisses from a golden retriever and agreed to a single charge of failure to confine a dog to one’s property, a fine of $25.00, and payment of the Jack Russell’s veterinary bills, which my client offered the neighbor anyway before any charges were filed. 

Dog bite cases have serious consequences for owners and victims.  While owners must be responsible for controlling their pets, at the same time a dog should not be put in jeopardy of losing its life without proof beyond a reasonable doubt that the dog is a menace.

Social networking sites like Facebook and MySpace have quickly become a favorite hunting ground for attorneys conducting pretrial discovery.  Whether it is a divorce attorney tracking down evidence of a spouse’s illicit affairs or a defense attorney hired by an insurance company looking into the lifestyle of a person claiming to be hindered by injuries, the photographs and other posts people leave behind when their minds are far from litigation are often a fountain of truth. 

In a recent New York case, Romano v. Steelcase, Inc., a judge ordered a woman injured at work to authorize Facebook and MySpace to release all of her records and posts to defense counsel (Yes, a judge can require a party to permit access rather than making the other party go to the trouble of serving a subpoena).  Apparently, there was already enough evidence in her public information to cast doubt on her claims of serious limitations.  The judge cited various Facebook and MySpace privacy policy warnings that state even private posts may become public as proof that the plaintiff did not have a reasonable expectation of privacy in what she posted online.  Moreover, in light of what the judge already viewed as facts contrary to the woman’s injury claims and sworn testimony, he was not about to allow her “to hide relevant information behind self-regulated privacy settings.” 

Before the advent of social networking, defense counsel were already granted wide latitude in discovery of medical records, employment records and even personal diaries, calendars and photograph albums subject always to the court’s determination of whether the sought after information was relevant to the case or was merely a “fishing expedition” or intended to embarrass and harass.  The Romano court’s decision simply applied longstanding discovery principles to a new media. 

Plaintiffs with legitimate injuries should not fear the expansion of discovery into their private MySpace.  Confidentiality orders can require that any information disclosed does not go beyond the litigation.  Moreover, it can sometimes be turned to a plaintiff’s advantage.  If the defense shows pictures of the injured plaintiff sipping a drink on a beach by the rolling surf, then the plaintiff can show pictures of himself surfing prior to the accident and tell the jury how he can only watch since the injury.  Having nagging back pain or other injuries does not preclude one from going on vacation nor require one, as one Pennsylvania federal judge famously noted, “to vegetate in a dark room secluded from all forms of social interaction.”

Of course, the plaintiff who claims to be limited to vegetating in a dark room, but who then posts a picture of herself rock climbing on a Carnival Cruise, can only fault herself for her lack of truthfulness.