Hot Social Media Topics in Claims Handling &

Litigation

2nd Annual Mardi Gras

CLM Educational & Networking Event

February 17, 2015

www.theclm.org

Parks K. Stone, Esq. Senior Counsel

Gordon & Rees, LLP Constance B. Woods, Esq.

Vice President – Legal American Southern Insurance Company

Hot Social Media Topics in Claims Handling &

Litigation

www.theclm.org

Legal v. Ethical

• Law – Tell us what we cannot do (prohibitions) and what we must do (mandates)

• What about what we should do?

• Ethics – A system of moral principles and rules of conduct recognized with respect to a particular group or culture (i.e. medical ethics; Christian ethics, etc.)

www.theclm.org

Legal v. Ethical

• Some overlap in the two concepts

• Closely related, but often ethical obligations exceed legal duties

• Many illegal actions not unethical (i.e. speeding)

• Some unethical acts are legal (lying/betraying a friend’s confidence)

• Often laws are designed to protect against unethical behavior (wire fraud, theft, etc.)

www.theclm.org

Social Media Ethics

Considerations for:

• Attorneys

• Jurors

• Plaintiffs

www.theclm.org

Social Media Investigation in Discovery

• First and foremost: Detect malingering

• Identifying all causes of loss

• Identifying pre-existing conditions

www.theclm.org

Investigating a Claimant’s Social Media Presence

• Social media can sink a claimant’s case • Omiesha Daniels - 2013 Gwinnett County case • Car accident resulting in a broken arm and head injury causing a large forehead

scar • Sought $1.1 million in damages and that her injuries prohibited her from working

as hair stylist • Twitter account showed otherwise – showed she was living a full life • “Epic weekend” in New Orleans • Spring break pictures • Pictures carrying a handbag • “I’m starting to love my scar” • “It’s my birthday and I’ll get drunk if I want to” • Had to explain all of these to the jury • Jury returned a $237,000 verdict • Jurors did not want to give her more money

www.theclm.org

“Friending the Enemy”: Rules

• ABA Model Rule 4.2 – A lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter

• ABA Model Rule 4.1(a) forbids a lawyer from making “a false statement of material fact or law to a third person.”

• ABA Model Rule 8.4(c) forbids a lawyer from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.”

www.theclm.org

Drawing the Line

Permissible

• Viewing publicly available social media information concerning Plaintiff

• View information from other friends/relatives

• Request social media records in discovery

• Be sure to check Facebook “groups”

Impermissible

• Taking actions that require interaction with Plaintiff (e.g., friending, following)

• Argument: Deceitful to “friend”

under false pretenses (omits the fact that the third party is accessing page solely for purpose of obtaining impeachment materials)

• Having agent do this on behalf of attorney

(e.g., NJ case where paralegal issued friend request ethics charges against attorney).

www.theclm.org

Stored Communications Act

• 1986 Stored Communications Act - Prevents certain private electronic communications from being disclosed by companies without authorization

• Enacted well before the age of the internet

• Essentially all social media sites object to subpoenas under this Act

• Social media sites compare themselves to email providers

• Crispin v. Christian Audigier Inc. – 2011 California federal case

• Party issued subpoena to Facebook and Myspace

• The Crispin court ruled that federal law protected social media networks from having to respond to discovery requests

• Very few cases have addressed this Act’s application to social media

• This appears to be the current state of the law

• But it does not apply to individuals

www.theclm.org

Practice Pointer: The Facebook Discovery Request

• Nothing to stop parties from sending requests directly to parties

• The following discovery request can be sent in personal injury cases:

Please produce all information on any Facebook page and/or account that you have had from January 1, 2011 to the present. Defendant agrees and stipulates that the documents will be subject to a confidentiality agreement and used only for purposes of this ligation. A USB flash drive is being provided herewith for your use to be returned with your response to this request for production. You can download your information from the Account Settings page by following these instructions: (1) Log onto your Facebook account; (2) Click the account menu at the top right of any Facebook page; (3) Choose “Settings”; (4) Click on “download a copy of your Facebook data; (5) Click the Download button on the following page; and (6) Download the information onto the flash drive provided.

• Courts have found this request appropriate Held v. Ferrellgas, Inc., Case No. 2:10-cv-2393-EFM-GLR (D. Kan.).

• However, some courts will require the production of only relevant information to the claim (pictures/post pertaining to plaintiff, referencing his/her job, etc.)

• Have to rely on Plaintiff’s counsel to turn over documents in good faith

www.theclm.org

The Facebook Discovery Request: Login Information

• Sometimes can obtain login information – although less likely nowadays

• Largent v. Reed, No. 2009-1823 (Pa. C.C.P. Nov. 8, 2011) – Ordered the plaintiff to turn over her Facebook login information to defense counsel within 14 days of the date of the order. Defense counsel then would have 21 days to “inspect [the plaintiff’s] profile.” After that period, the plaintiff could change her password again

• Trail v. Lesko, No. GD-10-017249 (Pa. C.C.P. July 3, 2012) - Both sides sought to obtain Facebook posts and pictures from the other. Neither complied and both parties filed motions seeking to compel the other to turn over its Facebook password and username. The court explained that a party is not entitled to free-reign access to the non-public social-networking posts of an opposing party.

• Chauvin v. State Farm Mutual Automobile Insurance Company, 2011 U.S. Dist. LEXIS 121600 (S.D. Mich. Oct. 20, 2011) – Rejected the concept that a party must produce its login and password

www.theclm.org

The Facebook Discovery Request: Not Without Limitations

• Courts are now trending toward requiring the production of only relevant information to the claim (pictures/post pertaining to plaintiff, referencing his/her job, etc.)

• “The federal rules do not provide a “generalized right to rummage at will through information that the responding party has limited from public view” but instead require a “threshold showing that the requested information is reasonable calculated to lead to the discovery of admissible evidence.” Mailhot v. Home Depot USA, Inc., 285 F.R.D. 566 (C.D. Cal. 2012)

• Jewell v. Aaron’s, Inc., Case 1:12-cv-00563-AT (N.D. Ga. 2013) Class action lawsuit involving claims that the defendant failed to provide breaks to its employees. Defendant sought all Facebook postings and photos. Court rejected the requests for the entire Facebook accounts.

• In short – like almost every area of the law – cases are on both sides by this point

• Tips:

• Try to show a valid basis for your “fishing expedition” request , i.e. that your prior investigation of publicly available social media or that you have some other reason to believe that there will be non-public Facebook information related to the case

• Seek in camera inspection

www.theclm.org

Spoliation

• If a party deletes, manipulates, or refuses to hand over relevant material from a social media account, the court may impose sanctions.

• Deleted Facebook accounts and posts remain subject to discovery

• If an account vanishes from Facebook, it is not necessarily lost forever.

• Deactivation - With deactivation, the profile disappears and other users cannot find it in the directory. But all the information saved by Facebook will reappear upon reactivation.

• Deletion - In contrast, a deleted account is removed permanently, the user cannot regain access, and most information is removed from the website.

www.theclm.org

Spoliation Sanctions

• If a party deletes, manipulates, or refuses to hand over relevant material from a social media account, the court may impose sanctions.

• Infamous case - Lester v. Allied Concrete Co., No. CL08-150 (Va. Cir. Ct. Sept. 01, 2011), a judge gave an adverse inference jury instruction and ordered the plaintiff and his attorney to pay over $500K total attorneys’ fees for spoliation sanctions.

• Plaintiff’s lawyer told his paralegal to make sure the plaintiff “cleaned up” his Facebook page.

• Paralegal helped the plaintiff to deactivate his page and delete 16 pictures from his account.

• Although the pictures were later recovered by forensic experts, the court found that sanctions were warranted based on the misconduct.

• IP logs may contain information about the date, time, and user that made a change to the account.

www.theclm.org

Spoliation Sanctions • Other cases have imposed less severe sanctions

• Katiroll Company, Inc. v. Kati Roll and Platters, Inc., No. 10-3620 (GEB) (D.N.J. Aug. 3, 2011) – Defendant changed his Facebook profile picture which showed infringing trade dress

• Court ordered him to change it back so the other party could capture and print the posts it considered relevant

• Court held that there is a duty to preserve photos

• Court did not award more severe sanctions because the plaintiff had not explicitly requested that the defendant preserve his Facebook account as evidence.

• Could not show that the change was intentional.

• This decision supports the idea that counsel should issue a litigation-hold notice to opposing parties, as well as to one’s own client.

www.theclm.org

Litigation Hold Letters

• Social media data is subject to the same duty to preserve as other types of electronically stored information (ESI).

• The duty to preserve is triggered when a party reasonably foresees that evidence may be relevant to issues in litigation.

• All evidence in a party’s “possession, custody, or control” is subject to the duty to preserve.

• Evidence generally is considered to be within a party’s “control” when the party has the legal authority or practical ability to access it.

• Social media content should be included in litigation-hold notices instructing the preservation of all relevant evidence.

• Once the litigation-hold notice has been issued, parties have available to them a number of ways to preserve social media data, depending on the particular platform or application at issue.

www.theclm.org

Practice Pointers: Clients & Social Media

• Warn Client Regarding Discoverability of Social Media. “There is no dispute that social media information may be a source of relevant information that is discoverable.” Reid v. Ingerman Smith LLP, (E.D.N.Y. Dec. 27, 2012).

• Preserve Discoverable Information. Allied Concrete Co. v. Lester , 285 Va. 295 (Va. 2013) ($540,000 sanction against attorney for telling client to “clean up” Facebook page)

• Seek Discovery of Claimants’ Social Media – Requests for Production – Ask for review In Camera

• Barnes v. CUS Nashville, LLC, (Unpublished) (M.D. Tenn, June 3, 2010) (magistrate “friended” nonparties to review pictures and posts).

www.theclm.org

Social Media Considerations for Attorneys/Adjusters

• Confidentiality

• A lawyer shall not reveal information relating to the representation of a client. RPC 1.6(a).

• Not just confidences and secrets, but “all information relating to the representation, whatever the source.”

– ABA Rule 1.6, cut. 3.

• Must take “reasonable precautions” using methods of communication that afford “a reasonable expectation of privacy” when transmitting communications.

– RPC 1.6, cut. 17.

www.theclm.org

Attorney-client privilege

• Confidential matters communicated by or to the client in the course of gaining counsel. Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000).

• To prevent waiver, attorney and clients have a duty to use reasonable measures to prevent disclosure to third parties.

www.theclm.org

Caution When Posting

• Questions on Listservs, that Identify:

• Client

• Strategies

• Comments on Social Media Regarding Client/Case.

• Comments on Social Media Regarding Court/Jury.

www.theclm.org

The Paula Dean case

• Plaintiff’s attorney tweeted regarding his deposition of Dean: "I've been doing Paula Dean, but in a strongly metaphorical sense.”

• He continued: "I plan on undressing her. Metaphorically,"

• This led to a sanctions hearing against plaintiff’s counsel

• Case settled, but issue still pending

www.theclm.org

Acceptable

• Generic – Non Case Specific - Posts

• Be Careful -- Issues of Public Interest and Public Record. • Hunter v. Virginia State Bar (Va. Feb. 28, 2013). (Virginia Supreme Court held

that a lawyer has a 1st Amendment right to blog about clients' cases without their permission as long as the lawyer uses only information that was a matter of public record).

• But see Iowa Supreme Court Discipline Bd. v. Marzen, 779 N.W.2d 757, 765-67 (Iowa 2010) (lawyer violated Rule 1.6 by disclosing information that was publicly available); In re Bryan, 61 P.3d 641 (Kan. 2003) (same); Admonition No. 98-70, 14 Mass. Att’y Disc. R. 941 (Mass. 1998) (A lawyer was admonished for disclosing detrimental information about a client to a regulatory agency in Canada even though the information was a matter of public record).

www.theclm.org

Unacceptable

• Judge Mike Maggio - “Geauxjudge” • Charlize Theron adoption

• Comments Regarding Client. • Illinois attorney charged in ethics complaint for responding to clients AVVO post. In the

Matter of Betty Tsamis, No. 6288664, Commission No. 2013PR00095 (Ill. August 26, 2013).

• Comments Regarding Case Strategy

• Comments Disparaging to Tribunal • Indiana Blogger received 1 year suspension for private comments disparaging judge. In

re Paul Ogden, Cause No. 49S00-1303-DI-00183 (Ind. Dec. 13, 2013).

• Debra Cassens Weiss, Blogging Law Prof Requests Ethics Probe of ‘Dybbuk’ Commenter, ABA Law Journal (Jan 7, 2014).

www.theclm.org

Other cases involving attorneys

• Florida: Attorney blogged about judge forcing criminal defendants to waive speedy trial rights.

Result: Public Reprimand, Ethics Violation

• North Carolina: Attorney became Facebook friend with judge he was appearing before

Result: Judge publicly reprimanded

• Illinois: Public defender blogged about cases she was working on.

Result: Fired.

www.theclm.org

Posting Depositions Online: Legal Considerations

• Depositions May Not Be “Public Records.” • Seattle Times v. Rinehart, 467 U.S. 20, 33 (1984) (depositions are not public element of

trial). • C.R.C.P. 26(c); 30(f)(2).

• Attorney Advertising • RPC 7.2 • FL Bar Guidelines for Video Sharing Sites (subject to rules of professional conduct “if

used to promote the lawyer or law firm’s practice”).

• Who owns the Deposition? • Some commentators and parties have argued that the depositions is property of court

report or the court. • Lil Wayne/Justin Bieber

www.theclm.org

Ethical Considerations

• Ethical Issues Include Weighing: • Whether the deposition is being used to expose a social injustice; • To gain advantage in the litigation; • To embarrass a party.

• Client Confidences, Rule 1.6

• Illinois attorney suspended for 5 months for posting video of his client pursuant to Rule 1.6.

• Trial Publicity, Rule 3.5 • Rule 3.5 prohibits attorneys from making an extrajudicial statement an attorney knows will be

disseminated publically if it “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

• Impartiality and Decorum of Tribunal, Rule 3.6,

www.theclm.org

Jurors and Social Media

www.theclm.org

Voir Google

• ABA Rule 3.5: A lawyer shall not:

– (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

– (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;

• Hot button topic in the internet age

• Voir google

• Some states have statutes prohibiting jurors from using social media and the Internet – such as texting, Twitter, Facebook, and Internet searches – to research or disseminate information about cases

• Attorney and jurors can be held in criminal or civil contempt for violating these restrictions.

• Many jurors do not understand the gravity of the conduct – updating Facebook with their thoughts is simply a way of life

www.theclm.org

Which of These Are Actual Juror Posts?

• “the coffee sucks here”

• “Back to jury duty can it get any more BORING then going over piles and piles of metro pch records . . . uuuuughhhh.”

• “Court. Day 5. Here we go again.”

• “Guilty, guilty... I will not be swayed. Practicing for jury duty.”

www.theclm.org

Answer: All of Them

• “the coffee sucks here" • This and other tweets resulted in new murder trial of death row inmate. Juror's

Tweets Get Death Row Inmate New Trial, CBS News (Dec. 11, 2011).

• “Back to jury duty can it get any more BORING then going over piles and piles of metro pch records . . . Uuuuughhhh.”

• “Actually excited for jury duty tomorrow. It’s gonna be fun to tell the defendant they’re GUILTY. :P.” • Juror removed. Jameson Cook, Facebook Post Is Trouble for Juror, Macomb Daily, Aug. 28, 2010,

• “Guilty guilty... I will not be swayed. Practicing for jury duty.” • Prospective Juror Tweets Self Out of Levy Murder Trial Jury, NBC Washington, (Oct 22, 2010).

www.theclm.org

Ethics regarding jurors

Cases everywhere addressing this issue

• Michigan juror on Facebook: “Excited for jury duty tomorrow. It’s gonna be fun to tell defendant they’re GUILTY”

• California juror wrote blogs on a murder trial -including photographs of murder weapon and hosting a chat room about the case (Did not think this constituted discussing the case)

Result: Judge held in contempt

• Texas: auto accident case – Juror “friended” the defendant on Facebook

Result: Contempt (two days of community service)

www.theclm.org

Ethics regarding jurors

• Courts must find prejudice

• Harmless tweets, postings have been found okay (i.e. verdict coming tomorrow, deliberations ongoing, etc.)

• Jury instructions critical – must explicitly forbid all “posting” and “publishing” activities on social media

• Must explicitly forbid “googling” parties

• Alabama trial court has recently refused to publish juror lists until day of trial

www.theclm.org

Ethical Research of Prospective Jurors

• Dos

Research public profiles • Google, Facebook, Twitter public

blogs,

• Be wary of sites that track visits. (LinkedIn).

• Consider using jury consultants.

Don’ts • ‘friend’ or ‘follow’ the venire or

empaneled jurors. RPC 3.5

• Use false names to ‘friend’ or ‘follow.’ RPC 3.5; Phila. Bar Ass'n Prof. Guidance

Committee Op. 2009-02 (2009)

• Consultants use false names to ‘friend’ or ‘follow.’ RPC 5.1, 5.3

www.theclm.org

Jurors Conduct Causes Mistrial

• Vermont Supreme Court recently overturned a child sexual assault conviction because a juror conducted his own research on the cultural significance of the alleged crime in Somali Bantu culture.

• State v. Abdi, No. 2012-255, 2012 WL 231555 (Vt. Jan. 26, 2012).

• Nearly half of the jury members friended each other on Facebook, partially served as basis for motion for new trial of Baltimore Mayor Sheila Dixon convicted of embezzling gift cards.

• Martha Neil, “Juror Facebook Contact, $324 Food Prize Could Cause Mistrial in Baltimore Mayor’s Case,” A.B.A. J., Dec. 7, 2009.

www.theclm.org

Preventing Violations

• Jury Instructions

• Effective instructions: • Specific and comprehensive

• Friending participants in the trial, to blogging, tweeting, posting any other form of update, or conducting independent research.

• Repetition of these instructions

• Warn of penalties, i.e. fines, contempt, etc. • See, e.g., United States v. Juror Number One, 866 F. Supp. 2d 42 (E.D. Pa. Dec. 21, 2011) ($1,000

criminal contempt fine for juror who emailed thoughts on guilt of defendant to other jurors); In re Kaminsky, 2012 N.J. Super. Unpub. LEXIS 539 (N.J. Super. Ct. Ch. Div. Mar. 12, 2012) (directing juror to show cause why he should not be held in contempt for Internet research during trial).

www.theclm.org

Preventing Improper Use of Social Media – Voir Dire

• How many accounts does a juror have?

• How actively does he or she post?

• Which social media services prospective jurors use?

• Do you get your news/information online – how often?

• Do you participate or comment online - how often?

• Will you be able to abide by the rule not to search the internet?

• In higher profile cases, consider asking the court to require jurors disclose user names.

www.theclm.org

Q & A

Parks K. Stone, Esq. Senior Counsel

Gordon & Rees, LLP

Constance B. Woods, Esq. Vice President – Legal

American Southern Insurance Company