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© Copyright 2014 by K&L Gates LLP. All rights reserved.
April 30 – May 1, 2014
Effective Use of Social Media in Litigation
PANELISTSPaul W. Sweeney, Jr.Partner, Commercial DisputesK&L Gates [email protected]
Kevin S. AsfourPartner, Commercial DisputesK&L Gates [email protected]
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Overview of Program Social Media Overview Institutional Risks / Concerns & Mitigation Uses of Social Media in Litigation Acquisition of Social Media Evidence Authentication & Proffering of Evidence
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Social Media Overview
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1. Types of Material Available Posts/communicative statements Photographs & videos “Statuses” & other identifying information Employment status/position Marital/relationship status Geographical location “Permanent” (e.g., place of residence) Ephemeral (e.g., Foursquare “check-ins”)
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1. Types of Material Available (cont.) “Friendships” & connections with individuals &
organizations
Key personnel (for institutions)
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2. Sources “Networking” platforms Social emphasis (e.g., Facebook, Google Plus)
Professional emphasis (e.g., LinkedIn) Dating emphasis (e.g., eHarmony, Match.com)
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2. Sources (cont.) Blogs & “microblog” platforms Examples: Twitter, Instagram, Tumblr
Initial blog posts Comments/discussions on posts
Web forums / discussion boards Traditional personal websites
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Institutional Risks/Concerns & Mitigation
Institutional Risks/Concerns & Mitigation1. Personnel disclosing sensitive/damaging
information2. Employees making unauthorized statements/
admissions that could be attributable to employer
3. Employees taking positions inconsistent with employer’s stance
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Institutional Risks/Concerns & Mitigation (cont.)4. Employees breaching confidentiality obligations
of employer Example: Trade secret agreements.
5. Obligations to preserve, collect & produce in response to formal discovery demands
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Institutional Risks/Concerns & Mitigation (cont.)6. Corresponding spoliation / adverse-inference
consequences for failing to do so. See John G. Browning, Burn After Reading: Preservation and Spoliation of Evidence in the Age of Facebook, 16 SMU Sci. & Tech. L. Rev. 273.
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Institutional Risks/Concerns & Mitigation (cont.)7. Prophylactic Measures Formal company policies re. social media Identification of personnel online. Disclaimer of views. Note: Even if these policies are not always obeyed,
they can provide “cover” to distance company from unauthorized statements.
Caveat: Potential NLRA issues with overly restrictive social networking policies. See NLRB Memo. OM 12-59 (May 30, 2012).
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Institutional Risks/Concerns & Mitigation (cont.)7. Prophylactic Measures (cont.) Company policies re. use of IT resources for
social media tasks When employee is authorized to “post”
on behalf of company (e.g., PR official): Ensure log-in credentials are available to and can be
retrieved/revoked by an officer(s). This helps ensure continuity, prevent terminated employee
from going “rogue,” etc. See “HMV Employee Commandeers Corporate Twitter Account in Response to Layoffs,” Businessweek.com, Jan. 31, 2013 (http://tinyurl.com/avnojs4).
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Uses of Social Media in Litigation
Uses of Social Media in Litigation1. Use as investigative tool. Learn more about adverse party. Help identify: Potential witnesses Relevant events, facts, issues
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Uses of Social Media in Litigation (cont.)2. Obtain evidence for use at trial, on dispositive
motions, or in settlement negotiations. Examples:
Rebut existence/extent of physical injuries. Refute claims of harassment, emotional distress,
etc.
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Uses of Social Media in Litigation (cont.)2. Obtain evidence (cont.) Examples: (cont.)
Disprove wage/hour claims. Example: Refute purported “overtime” work via
employee postings on social websites. Bolster punitive damages claim. Demonstrate party’s “despicable” attitude toward
conduct, which is in need of “punishment” (analogous to use of social media by criminal prosecutors during sentencing).
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Uses of Social Media in Litigation (cont.)2. Obtain evidence (cont.) Examples: (cont.)
Obtain aggregate evidence of “public sentiment.” Establish/rebut consumer confusion in IP cases.
See Jennifer K. Gregory, #BewareOfOvershare: Social Media Discovery and Importance in Intellectual Property Litigation, 12 J. Marshall Rev. Intell. Prop. L. 449 (2013).
Demonstrate impact of defamatory statements on public perception.
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Uses of Social Media in Litigation (cont.)3. Investigate/impeach adverse witnesses.4. Investigate/impeach adverse experts.5. Learn about opposing counsel.6. Learn about judge.
Caveat: Interactive and/or ex parte“communications” prohibited
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Uses of Social Media in Litigation (cont.)7. Learn about prospective or seated jurors.
“[C]lients now often expect that attorneys will conduct such research. Indeed, standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case.”
N.Y. City Bar Formal Opn. 2012-2 (2012) (emphasis added); see also N.Y. County Formal Opn. 743 (2011); ABA Model Rule 1.1 cmt. 8 (2012) (“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”)
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Uses of Social Media in Litigation (cont.)7. Learn about prospective or seated jurors. (cont.)
Caveat: Interactive and/or ex parte “communications” are strictly prohibited. See, e.g., San Diego County Bar Legal Ethics Opn. 2011-2 (2011).
Examples: Subscribing to a juror’s Twitter feed (since the juror will receive a
notification); Visiting a LinkedIn page under default settings (which drops a virtual
“calling card”); Submitting a “friend” request on Facebook, etc. See “LinkedIn Search Nearly Upends BofA Mortgage Fraud Trial,”
Law360, Sep. 27, 2013.
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Uses of Social Media in Litigation (cont.)8. Monitor compliance with settlement
confidentiality obligations. See, e.g., “Girl Costs Father $80,000 With Facebook
Post,” CNN.com, Mar. 4, 2014 (http://tinyurl.com/n7v3dlx).
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Acquisition of Social Media Evidence
Acquisition of Social Media Evidence1. Unilateral Acquisition
By counsel Ethical authorities affirmatively bless attorney’s unilateral
acquisition of publicly accessible social media data. See, e.g., N.Y. State Bar Eth. Comm. Opn. 843 (Sep. 10, 2013); Oreg. State Bar Eth. Comm. Opn. 2013-189 (Feb. 2013).
Attorney (or agent) cannot use “pretexting” to gain access to “private” information.See, e.g., Phil. Bar. Assn. Prof. Guid. Comm. Opn. 2009-02 (2009); San Diego County Bar Legal Ethics Opn. 2011-2 (2011); Cal. Rule Prof. Cond. 2-100; ABA Model Rule 4.2; but see N.Y. City Bar Formal Opn. 2010-2. Example: Information accessible only to “friends”
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Acquisition of Social Media Evidence1. Unilateral Acquisition (cont.)
By counsel (cont.) Be careful not to “interact” with represented parties – even
inadvertently. Example: Automatic dropping of LinkedIn “calling card”
Sending a “friend” request to an unrepresented non-party (e.g., a third-party witness) may nonetheless require the attorney to disclose the purpose of the request. See Phil. Bar. Assn. Prof. Guid. Comm. Opn. 2009-02 (2009); but see N.Y. City Bar Formal Opn. 2010-2.
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Acquisition of Social Media Evidence (cont.)1. Unilateral Acquisition (cont.)
By outside vendor/investigator Firms specializing in “scraping” social media data. Caveat: Attorneys cannot circumvent ethical rules by way
of an agent or proxy. See, e.g., John G. Browning, Keep Your “Friends” Close and Your Enemies Closer: Walking the Ethical Tightrope in the Use of Social Media, 3 St. Mary's Journal of Legal Malpractice & Ethics 204, 225, 228-29 (2013).
By party
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Acquisition of Social Media Evidence (cont.)2. Acquisition of “private” data through formal
discovery demands may be feasible. Case law is evolving. Judicial trend: Require seeking party to lay foundation for
potential relevance, beyond mere speculation.
Demands to adverse party may include items such as: Requests for production of documents Interrogatories that demand posting aliases or
“handles”
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Acquisition of Social Media Evidence (cont.)2. Formal discovery demands (cont.)
Subpoenas to third-party service providers/custodians Limitation: The Stored Communications Act (18 U.S.C. § 2701,
et seq.) prohibits social media sites and Internet service providers from disclosing content of electronic communications without user’s consent, even when faced with a subpoena. See, e.g., Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 979-980 (C.D. Cal. 2010).
Note: Certain information can be obtained via subpoena, e.g., access logs.
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Acquisition of Social Media Evidence (cont.)3. Consider sending adverse party a litigation
“hold” demand that extends to social media.4. Potentially severe spoliation issues.
Example: Combined $722,000 in sanctions awarded against attorney and client after attorney instructed client to “clean up” his Facebook page and client obliged. Lester v. Allied Concrete Co., 2011 WL 8956003 (Va. Cir. Ct. Sep. 1, 2011), 2011 WL 9688369 (Va. Cir. Ct. Oct. 11, 2011).
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Authentication & Proffering of Evidence
Authentication & Proffering of Evidence1. Lay a foundation. How and when evidence was acquired How evidence was preserved
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Authentication & Proffering of Evidence2. Establish identify of poster. Party or witness may deny (accurately or not) that
he/she made the posts. Poster’s name may be common. Others may have access to poster’s log-in credentials, with
permission.
Others may have stolen or “hacked” poster’s log-in credentials.
The account may never have belonged to alleged poster. Other party may have created it to “spoof” or “frame” alleged poster.
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