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For my seminar at the Solo and Small Firm Conference in August, 2013. Explores how the use of social media can impact cases, explains how to find data, provides advice on communicating with clients on social media, and discusses preservation and ethics.
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Social Media – Not Just for Marketing
Solo and Small Firm Practice Section Conference
Pennsylvania Bar InstituteAugust, 20013
Jennifer EllisLowenthal & Abrams
Jennifer Ellis, JD Consultingwww.jlellis.net
www.lowabram.com
Slides Available
www.jlellis.net/blog/socialmedia_PBI
Today’s Discussion
• Why Social Media Matters
• Potential Business
• Available Information
• Impact on Cases
• Finding Information
• E-Discovery
• Ethics
1.15 billion
1 billion users per month
343 million
130 million4 billion photos
70 million
500 million
66 Million Blogs
225 million
33 million1.3 million businesses
216.3 million users108. 9 million blogs
Why Social Media Matters
• Numbers
• Society
• Expectations
• Data
• Impact
Potential Business
• Discuss with clients the need for:
– Wills dealing with social media accounts after death
– Employment policies
– Business policies
– Intellectual property concerns
– Privacy issues
What is Available? Everything
• People provide a lot of information online
– Intentionally
– Accidentally
• How?
– Social Media
– Advertising Trackers
– Blog Posts
• Blog Comments
Famous Last Words
I thought it was private
Social Media Can Destroy Cases
• Twitter – Client posted pictures and discussed how she was enjoying
life and becoming used to a scar
– Low verdict
• Blog & MySpace– Woman posted about belly dancing despite claiming a
serious injury
– Angry judge, loss of substantial alimony
Social Media Can Destroy Cases
• Facebook– Numerous people claim serious injuries and show
contradictory information on Facebook
– Decreases settlement strength and value of case. Sometimes results in lost cases.
Advice
• Discuss social media use with your clients
• Instruct clients to stop using social media– Explain that anything can impact a case
– Explain client cannot delete content
– Discuss privacy settings
Advice
• Review client’s social media account immediately
• Review opposing side’s social media account immediately
– Preserve relevant information
– Obey ethical rules
Researching Social Media
Finding Data Isn’t Easy
• Not like searching on Lexis or Westlaw
– Various search engines
– Privacy settings
– Legal issues
Three or Four Pronged Approach
• 1. Gather Data about Person
• 2. Find Account(s)
• 3. Review Accounts
• 4. Verify Information
1. Gather Data
• Name(s)
• Email Address(es)
• Site(s) using
• Links to accounts
• Is your client connected to the person?
2. Find the Account
• Use search techniques to find the account
–Might require offline techniques
• Cooperation of account owner
• Discovery
3. Review the Account
• Access what you can
–Privacy settings will be an issue in some cases
4. Verify
• Does the account belong to the person you are seeking?
– Compare with what you know about the person
• Pictures
• Email address(es)
• Other details
– Use other accounts or online presence to verify
• Was the account created by a third party to hurt the person?
Facebook and Curtis D. Ellis
• Curtis is suing Rami and Angelou for harm he suffered:
–Rami tried to touch Curtis’ Rawhide
–Angelou lay on Curtis’ back
The Claims
• Cannot do his job, i.e. Guarding house and person of his owner– Feels jumpy and distracted
– Unable to focus as necessary
– Having issues barking
• Substantial loss of life enjoyment – Unable to
– Eat his favorite food
– Visit his friends
– Engage in physical activity
The Plaintiff
The Defendants
Pause to Review Facebook and Privacy Settings
• Privacy settings have a huge impact on what you can see
– Friends can see a lot
–Public can only see what owner of account allows
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
InterestsPosts and Answers
Individual Posts and PicturesChoose Who Sees What
Finding Someone
• No Connection?
–Can be difficult
Get ID Link if You Can
• Individual settings matter here too• The more private the settings
the harder to find• People can choose to be
searchable in Google, most don’t
Back to Curtis D. Ellis v. Rami & Angelou
• Curtis is friends on Facebook with Rami & Angelou (Cats)
• Cats can access his account
• What has Curtis provided to counter the claims?
Post: Concerned about Cats
Curtis explains his concerns
Picture: Angelou on Back
Angelou did in fact lay on Curtis’ back
However!
Curtis is Clearly Guarding
And Barking
And Eating Burgers
Curtis Might Have a Problem With his Case
The Problem of Popular Names -Verification
• Question
–Does Jennifer Ellis have a MySpace Account?
• What do we know about Jennifer Ellis?
– Lives in Pennsylvania
–34 to 45 years old
–Attorney
Look on Google? 3.2 Million Results
Look on MySpace? 500 Results
Learn the Tools of Each SiteMySpace Advanced Search
2 Results – No Picture
Examine Account
Follow Data Where it Leads
Examine Site for Clues
Twitter Search
Twitter Requires Operators
More Twitter Operators
YouTube
YouTube: Filter
Google+
• Must be in your circles or
• Publicly shared
• Works like regular Google search
–Google+ results integrated into regular Google results
• Bookmark search for repetition
Google+ : Filter
LinkedIn Search
LinkedIn Search
Ethics of Social Media in Cases
• Can review openly viewable data from opposing side
–Cannot friend opposing side
• Two NJ attorneys in trouble for friendingopposing client
• Numerous guidance opinions
Ethics of Social Media in Cases
• Can friend opposing witness
• Must make it clear who you are
• District attorney fired for friending witnesses, pretending to be ex-girlfriend of defendant
• Can research jurors
– Must not communicate with jurors
– Includes friending
Spoliation & Social Media
• Cannot delete account, posts, pictures or other content
–Adverse inverse for deletion – Gatto
–$700k in sanctions – Sprouse
• Disciplinary Charges
• Can:
–Change privacy settings
–Disable account
Litigation Tools
• Notice to Preserve
• Interrogatories
• Request for Production
• During Depositions
• Continuous surveillance of ethically available online content
What to Request• Immediately request preservation of all online
activities
• Obtain links to all social media accounts
–Direct links
• Obtain all email addresses used to access social media accounts
• Watch out for duplicate accounts
• Request information about all online activities
–Don’t forget blog comments
Discovery of Social Media
• General rule:
–Contradictory information viewable in social media account? Discovery granted.
• Social media sites will not help in civil cases
– Stored Communications Act
• Will provide data to government in criminal cases
– Sometimes will fight
Data Preservation
• Download Entire Facebook Account
– Facebook tool
• Access site and preserve
–Recommend record actions as take screen shots.
• Camtasia to record screen and voice
• Snagit to record screen shots
Do Not Do the Preservation Yourself
• Will become a witness in your own case
– Remember the fired district attorney
What is Competence?
• ABA is seeking to explore and implement requirements surrounding technology and ethical use in law practice.
• Pennsylvania Bar Association exploring similar issues and seeking to amend or provide comments to Pennsylvania rules.
Proposed Comment [6] to Rule 1.1
Maintaining Competence – To maintain therequisite knowledge and skill, a lawyer shouldkeep abreast of changes in the law and itspractice, including the benefits and risksassociated with technology, engage in continuingstudy and education and comply with allcontinuing legal education requirement to whichthe lawyer is subject.
Slide from Daniel Siegel, Law Offices of Daniel J. Siegel
Thank you
www.jlellis.net/blog/socialmedia_PBI
Jennifer EllisLowenthal & Abrams
Jennifer Ellis, JD Consultingwww.jlellis.net
www.lowabram.com