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Social Media & LitigationPBA Solo and Small Firm Conference
Bedford Springs, July, 2015
SARA AUSTINAUSTIN LAW FIRM, LLC
JENNIFER ELLISLOWENTHAL & ABRAMS, PC / JENNIFER ELLIS, JD, LLC
ANITA PITOCKLOWENTHAL & ABRAMS, PC
Today’s Session
Impact of Social Media on Litigation Gathering Social Media Evidence Use of Social Media in Personal Injury & Medical
Malpractice Litigation Use of Social Media in Employment Law and Business
Litigation Ethical Issues (Throughout the Presentation)
Competence With Technology
Underlying all use of technology is Rule 1.1
New comment added as a result of work by American Bar Association
Adopted by Pennsylvania
Lawyers must,“keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal requirements to which the lawyer is subject.”
What Does Competence With Technology Mean?
Must be aware of what kind of technology is required in your practice Must be aware of risks and benefits
Must manage the risks
Any technology you choose to use Must be aware of risks and benefits
Must manage the risks
How? Educate yourself
Hire competent assistance
In house or out of house
1.44 billion157 million daily in US & Canada21 min per day
1 billion users4 billion views per day6 billion hours per month
600 million22% online adults at least once per month
300 million53% of 18-2960.3 million US
70 million80% women42% of online adult US Women550 million
50% of People Read Blogs
332 million40% check daily107 Million US17 minutes monthly
97% lawyers listed200,000 active lawyersOver 6 million questions
Why Social Media Matters
Social Media Can Destroy Cases
Publication of Confidential Information
Lawyers Get in Trouble Too
Pretending to be Someone Else
Improper Use to Influence Court
Loss of Immunity
Publication of pleadings and other documents can cause the loss of immunity from defamation.Sunstar Ventures, LLC. v. TiganiBochetto v. Gibson (lawyer faxed
complaint to press)
What Advice Should You Give Your Clients?
How Can You Protect Yourself?
What Should You Do at the Start of the Case?
Accessing Data Privacy Controls
Legal Issues Don’t violate computer access laws
Hacking into accounts
Using passwords without permission
Make sure clients don’t violate the laws Hacking
Keycaps and other malware programs
Going beyond permissible access
Ethical Issues No connecting to opposing side
Must be honest if seeking to connect to witness
Ok to research jurors May not connect
Data Preservation
Privacy Controls
The Plaintiff
The Defendants
Facebook and Privacy Settings
Privacy settings have a huge impact on what you can seeFriends can see a lotPublic can only see what owner
of account allows
Famous Last Words
“I thought it was private!”
What the Public Can See
No Information
Publicly Shared Photos
What the Public Can See
Looks Like Curtis Doesn’t Post Much
What Friends Can See
Details Curtis has shared
Posts by Others on Curtis’ Wall
Friends
What Friends Can See
Check Ins to locations
Interests Posts
and Answers
Individual Posts and PicturesChoose Who Sees What
Back to Curtis D. Ellis v. Millie, Rami & Angelou
Curtis is friends on Facebook with Rami and JenniferNot with Millie or Angelou
Curtis tags Rami and Jennifer in postsRami and Jennifer’s friends see posts where tagged
Jennifer and Rami are friends with all involved
A lot of data can be accessed as a result
Legal Issues
Subpoena Sites for Data?
Subpoena Sites for Ownership
Violating the Law
Federal
Electronic Communications Privacy Act:18 USC § 2510-2522 Includes computer based communications Includes stored communications
Federal
18 USC § 2511Interception and disclosure of wire, oral,
or electronic communications prohibited
Intentionally discloses, or endeavors to disclose, to any other person the contents of any…communication…
Pennsylvania
Unlawful use of computer and other computer crimes. (3rd Degree Felony) - 18 § 7611Accesses or exceeds authorization to access Provides password or other information allowing
access to a third party
Spoliation
Discovery of Social Media
Tell Us About Your Practice Areas
Interrogatories and Depositions
What Happens in Court?
FoundationBest EvidenceRelevanceAuthentication
Use
Social Media & LitigationPBA Solo and Small Firm Conference
Bedford Springs, July, 2015
SARA AUSTINAUSTIN LAW FIRM, LLC
JENNIFER ELLISLOWENTHAL & ABRAMS, PC / JENNIFER ELLIS, JD, LLC
ANITA PITOCKLOWENTHAL & ABRAMS, PC
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