Selected Chapters - NYSCALA · Many businesses, big and small as well as their employees maintain accounts on social media sites like Facebook, Twitter, and LinkedIn. With the explosion

Introduction, Developments and Ethical Issues in E-Discovery, Technology & Social Media – A Manual for Lawyers

Hon. Matthew A. Sciarrino, Jr.

© 2013-2015

By:

Selected Chapters

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INTRODUCTION

This manual is designed to aid attorneys and others involved with the law

as to the growing need to understand and appreciate the areas of the law

affected by technology, including electronic discovery and social media law.

Most of it is not original material and we let you know where to find that

material and who the people are that are responsible. If you know of any

great cases or stories please feel free to pass them on to me at

[email protected].

Keep in mind, that the second I hit print, much like the newest technology

you buy, a newer, better, more updated model is already available.

I want to thank the numerous people who have helped with this manual.

Especially, Louis Bara, Esq., my law clerk and the many interns who have

assisted and who even today pass on stories and cases that they think would

be great additions. Thank you to Roger Quiles, Esq, Pekhna Singh, Jamin

Koo and to the many others for their assistance.

Thank you to Justices Melissa Jackson (Former Supervising Judge of NY

County Criminal Court and now Administrative Judge of the Criminal

Courts for the City of New York) and Neil Ross (Deputy Supervising Judge

of NY County Criminal Court) for all of their support while I worked in NY

County Criminal Court, especially during the period I presided over the

OWS cases.

And thank you to a California lawyer that I met as a result of his interest in

a decision I wrote dealing with Twitter and OWS. He invited me to speak

at a conference in Utah (through LinkedIn) on “Social Media and the Law.”

This manual grew out of the materials that I prepared for that conference.

If you want more information about ediscovery and like bowties, visit the

blog of that lawyer, Josh Gilliland, Esq., at bowtielaw.com.

@mattsciarrinojr (twitter).

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Hon. Matthew A. Sciarrino, Jr. © 2013-2015 Social Media Law Manual

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Introduction, Developments and Ethical Issues in E-Discovery, Technology & Social Media Law

Version 4.0

by: Hon. Matthew A. Sciarrino, Jr., ©2013-2015

ATTORNEY: “I DON'T EVEN KNOW WHAT ‘NATIVE FORMAT’ MEANS.”

COURT: “YOU'LL HAVE TO FIND OUT. I KNOW. APPARENTLY [OPPOSING

COUNSEL] KNOWS. YOU'RE GOING TO HAVE TO GET EDUCATED IN THE WORLD OF

… ELECTRONIC DISCOVERY. ESI IS HERE TO STAY, AND THESE ARE TERMS YOU'RE

JUST GOING TO HAVE TO LEARN.” (SEE, ELLIS V. TOSHIBA AMERICA INFORMATION

SYSTEMS, INC., INFRA, (CAL. APP. 2D DIST., AUG. 7, 2013)

“A LAWYER SHALL PROVIDE COMPETENT REPRESENTATION TO A CLIENT.COMPETENT REPRESENTATION REQUIRES THE LEGAL KNOWLEDGE, SKILL,

THOROUGHNESS AND PREPARATION REASONABLY NECESSARY FOR THE

REPRESENTATION.”[THE ABA MODEL RULES OF PROFESSIONAL CONDUCT RULE 1.1]


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Table of Contents

Introduction ................................................................................................................................................ 10

Chapter 1: What is Social Media? ............................................................................................................... 10

General Stats ........................................................................................................................................... 11

Social Media Platform Stats .................................................................................................................... 12

Right to Be Forgotten .......................................................................................................................... 16

Basic Navigation of Social Media Hazards............................................................................................... 17

Chapter 2: What is e-Discovery and ESI? .................................................................................................... 20

E-Discovery is The Discovery of ESI ......................................................................................................... 20

Electronically Stored Information (ESI) ................................................................................................... 21

Uniform Rules for the New York State Trial Courts ................................................................................ 23

Privilege Logs ....................................................................................................................................... 26

Federal Rules of Civil Procedure ............................................................................................................. 27

Proposed Amendments to Federal Rules ............................................................................................ 28

Pilot rule adopted by the SDNY ............................................................................................................... 33

Tips .......................................................................................................................................................... 33

Stored Communications Act & The Wire Tap Act ................................................................................... 35

Smart-Phones are eDiscovery ................................................................................................................. 40

International Litigation ............................................................................................................................ 41

Top Ten e-Discovery Predictions for 2015 .............................................................................................. 43

Chapter 3: Civil Legal Issues ........................................................................................................................ 44

Personal Injury Law ................................................................................................................................. 44

Discovery ............................................................................................................................................. 45

Authorizations ..................................................................................................................................... 51

Cell Phone Records .............................................................................................................................. 53

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In Camera Review ............................................................................................................................... 55

Use at Trial .......................................................................................................................................... 56

Used in Motions .................................................................................................................................. 58

Sanctions ............................................................................................................................................. 58

Miscellaneous Case Examples ............................................................................................................. 58

Defamation & Libel (and Twibel) ............................................................................................................ 60

Sexual Harassment .................................................................................................................................. 65

Harassment/Cyber-Bullying ................................................................................................................ 66

Sexting and Other Forms of Civil Harassment .................................................................................... 70

Eavesdropping ......................................................................................................................................... 71

Copyright and Trademarks ...................................................................................................................... 73

Sports Law Issues .................................................................................................................................... 76

Jurisdiction .............................................................................................................................................. 80

Privacy Concerns ..................................................................................................................................... 80

Bloggers & First Amendment Rights ....................................................................................................... 85

Commercial Liability & Concerns ............................................................................................................ 86

Cyber-Currency (Virtual Currency) ...................................................................................................... 87

Consumer Protection .............................................................................................................................. 88

Financial Institutions ............................................................................................................................... 91

Post Settlement ....................................................................................................................................... 92

Chapter 4: Criminal Law .............................................................................................................................. 94

Introduction & 4th Amendment Issues .................................................................................................... 94

The Stored Communications Act ....................................................................................................... 109

What About Drones? ............................................................................................................................. 111

The 5th Amendment .............................................................................................................................. 112

Remember the 3rd Amendment ............................................................................................................ 113

Offenses Against Your Privacy ............................................................................................................... 114

Stalking .................................................................................................................................................. 115

ID Theft .................................................................................................................................................. 116

Unlawful Access to Another’s Account ................................................................................................. 117

Sexting and the Production, Possession, & Distribution of Child Porn ................................................. 120

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Sexual Predators ................................................................................................................................... 122

Harassment ........................................................................................................................................... 122

Revenge Porn ........................................................................................................................................ 122

Bizarre Crimes ....................................................................................................................................... 126

Brady Issues........................................................................................................................................... 126

Sentencing ............................................................................................................................................. 127

Set Bail or Release? ............................................................................................................................... 130

Orders of Protection ............................................................................................................................. 130

Probation/Parole ................................................................................................................................... 132

Contempt .............................................................................................................................................. 133

Threats .................................................................................................................................................. 134

What About Prisoners? ......................................................................................................................... 136

Social Media as Defense ....................................................................................................................... 138

Witness Intimidation ............................................................................................................................. 139

For Further Information ........................................................................................................................ 139

Chapter 5: Law Enforcement Use of Social Media .................................................................................... 141

How to Catch a Bad Guy ........................................................................................................................ 144

Smart Law Enforcement .................................................................................................................... 148

Not So Smart Alleged Offenders ....................................................................................................... 151

Smart Alleged Offenders ................................................................................................................... 161

Confessions and Plots ....................................................................................................................... 162

Gang Activity ..................................................................................................................................... 163

Cell Phone Tracking ............................................................................................................................... 164

Cell Phone Contents .............................................................................................................................. 167

Search Warrant Materials ..................................................................................................................... 168

Social Media Can be Very Useful in the Prosecution of a Case/Evidence ............................................ 172

Harris Cases & Other Noteworthy Examples .................................................................................... 174

Facebook and Photo Arrays .................................................................................................................. 177

Law Enforcement Community Relations ............................................................................................... 178

Law Enforcement “Requests” for Data ................................................................................................. 182

Data Spying (NSA & Co.) ........................................................................................................................ 185

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The Dark Corridors of the Internet........................................................................................................ 197

The Reverse – Citizens Monitoring of the Police .................................................................................. 199

Some Other Governmental/State Department Use of Social Media .................................................... 200


Chapter 6: Family Law Issues .................................................................................................................... 202

Divorce .................................................................................................................................................. 203

Equitable Distribution ........................................................................................................................... 203

Domestic Violence Issues ...................................................................................................................... 204

Custody ................................................................................................................................................. 205

Chapter 7: Miscellaneous Legal Issues ...................................................................................................... 208

Insurance Issues & Cyber-Security ........................................................................................................ 208

Social Media Exposure (Insurance Issues) ........................................................................................ 212

Tax Issues .............................................................................................................................................. 213

Estate Issues .......................................................................................................................................... 213

Securities Issues .................................................................................................................................... 214

Antitrust Laws ....................................................................................................................................... 217

Intellectual Property ............................................................................................................................. 218

Bankruptcy Issues .................................................................................................................................. 218

Advertising Issues .................................................................................................................................. 218

HIPPA and Social Media ........................................................................................................................ 219

Chapter 8: Procedural Issues..................................................................................................................... 221

Discovery ............................................................................................................................................... 221

Scope ................................................................................................................................................. 221

Overbroad ......................................................................................................................................... 222

Pre-Action Discovery ......................................................................................................................... 226

Making the Discovery Available ........................................................................................................ 226

Using Same eDiscovery Vendor ........................................................................................................ 228

Mediation of E-Discovery Disputes. .................................................................................................. 228

What Sources Did You Search? ......................................................................................................... 229

New York Duty to Preserve ESI ............................................................................................................. 229

Best Practices for Preserving ESI ........................................................................................................... 231

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Non-Party Discovery.............................................................................................................................. 235

Costs ...................................................................................................................................................... 242

Form of the Production ......................................................................................................................... 251

Production Requests ......................................................................................................................... 260

Facebook and Service of Process .......................................................................................................... 263

Skype Depositions ................................................................................................................................. 267

Predictive Coding to Sort Discovery- (a.k.a. [even if not correct] Technology Assisted Review [TAR]) 267

Costs of TAR – A Logical Approach .................................................................................................... 275

Discovery of the Seed Sets ................................................................................................................ 275

Is the Time for Predictive Coding (TAR) Already Past? ..................................................................... 277

Best Practices in Predictive Coding ................................................................................................... 277


Chapter 9: Authentication ......................................................................................................................... 281

Federal Rule 901: Authenticating or Identifying Evidence.................................................................... 282

New York Rule Regarding Authentication ............................................................................................. 283

Social Media Posts................................................................................................................................. 284

Judicial Notice ....................................................................................................................................... 288

Electronic Signatures in Emails ............................................................................................................. 288

Chapter 10: Admissibility .......................................................................................................................... 293

Admissions and Prior Inconsistent Statements .................................................................................... 293

Reputation/Character ........................................................................................................................... 294

Hearsay Exception ................................................................................................................................. 294

Photos ................................................................................................................................................... 295

Instant Message .................................................................................................................................... 296

Texts ...................................................................................................................................................... 297

Emoji ☺☞☹. ......................................................................................................................................... 298

Credibility/Cross-Examination .............................................................................................................. 299

Case Examples of Authentication & Admission or “Can’t Admit Without It Being Shown To Be

Authentic” ............................................................................................................................................. 299

Still Cannot Be Unduly Prejudicial ......................................................................................................... 300

Useful Guide for the Admissibility of ESI ............................................................................................... 300


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Chapter 11: Spoliation ............................................................................................................................... 302

Difficult to Preserve or Acquire ............................................................................................................. 303

Intentional Spoliation Could be Costly .................................................................................................. 303

Litigation Hold ....................................................................................................................................... 305

Court Found No-Misconduct ................................................................................................................. 310

Might be Misconduct? .......................................................................................................................... 311

Misconduct Found................................................................................................................................. 312

Adverse Inference Instruction ........................................................................................................... 313

Preclusion .......................................................................................................................................... 316

Sanctions ........................................................................................................................................... 318

Misconduct, but….............................................................................................................................. 320


Chapter 12: Attorney Issues ...................................................................................................................... 323

Ignorance of E-Discovery & Social Media Law is No Excuse ................................................................. 324

Plus “Tech” Can Help You .................................................................................................................. 329

Protecting Privileged ESI (Electronically Stored Information)............................................................... 330

Advising Clients Regarding Social Media and Technology .................................................................... 331

To Friend or Contact Opposing Parties? ............................................................................................... 333

Don’t Sext with Your Clients ................................................................................................................. 335

Unrepresented Parties .......................................................................................................................... 335

Attorney Use in Jury Voir Dire ............................................................................................................... 336

Model Rules of Professional Conduct ................................................................................................... 336

New York’s Rules of Professional Conduct ............................................................................................ 337

Suggestions for “Older Attorneys” ........................................................................................................ 340

Suggestions for those Who Are in Law School ...................................................................................... 342

Intranet, Company Emails and Attorney Client Privilege ...................................................................... 342

In-House Counsel .................................................................................................................................. 346

Passwords.............................................................................................................................................. 347

The Cloud .............................................................................................................................................. 348

Ethical Rulings in the Cloud ............................................................................................................... 349

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Virtual Law Office .................................................................................................................................. 355

Cyber Security At Your Firm .................................................................................................................. 356

Internet of Things (IoT) ......................................................................................................................... 358

Advertising ............................................................................................................................................ 358

LinkedIn Endorsements ......................................................................................................................... 360

Looking for a Job ................................................................................................................................... 362

Attorney Reviews .................................................................................................................................. 363

Miscellaneous Attorney Issues .............................................................................................................. 363

Retaining Lien .................................................................................................................................... 364


Chapter 13: Juror Issues ............................................................................................................................ 367

Showing PowerPoint to Jurors .............................................................................................................. 373

For Further Reading .............................................................................................................................. 374

Chapter 14: Judge Issues ........................................................................................................................... 375

Facebook Friends in the Courtroom ..................................................................................................... 377

Researching on Facebook ..................................................................................................................... 380

Facebook “Court” Page ......................................................................................................................... 380

The Blogging and Tweeting Judges ....................................................................................................... 380

Improper Use of Emails ......................................................................................................................... 383

Improper Texting ................................................................................................................................... 384

Improper Message Board Use ............................................................................................................... 384

Courts (Official Court Usages of Social Media) ..................................................................................... 384

Chapter 15: Employment Law Issue .......................................................................................................... 388

Asking for Employee Passwords ............................................................................................................ 389

How about asking for their account names to see anything public? .................................................... 392

Harassment, discrimination exposure?................................................................................................. 393

Who owns accounts when employee leaves? ...................................................................................... 394

Fired for your Posts? ............................................................................................................................. 396

Fired for Your Likes ............................................................................................................................ 402

Not Fired for Your Pictures ................................................................................................................ 403

Fired for Your Tweets ........................................................................................................................ 403

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Fired/Suspended for Texting/Sexting on the Job .............................................................................. 405

Fired for Your “Friends.” ................................................................................................................... 405

Not Fired for Your Posts .................................................................................................................... 406

Thumb Drive of Data ............................................................................................................................. 407

Can an Employer Search the Texts of the Employee? .......................................................................... 407

Company Computers............................................................................................................................. 408

GPS Surveillance of Public Employee by Government .......................................................................... 409

Corporate Social Media Guidelines ....................................................................................................... 411

School Policy Guidelines .................................................................................................................... 413

BYOD (Bring Your Own Device) ............................................................................................................. 414

Non-Solicitation Agreements ................................................................................................................ 421


Chapter 16: For Further Reading............................................................................................................... 424

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Introduction

By its very nature and design, and to avoid any ethical issues, the opinions and information provided in this manual all belong to someone else. Some I share, some I do not. I leave that up to you to figure out. I do however share whose opinions they, in fact, belong to. I truly hope you find this material useful and helpful; and that it makes you think about the tidal wave of technology that is still only a small wave of what is to come.

-Judge Matthew A. Sciarrino, Jr.

Chapter 1: What is Social Media? Social Media is a digital platform for real-time interaction between multiple

individuals. Virtually all websites and digital tools have social components, but there are a select few popular sites we think of when referring to social media. Those “few” have changed from time to time as new ones become popular and older ones fade from memory. That will continue as the technology develops and tastes and wants of the users change. Social Media in one form or another, will be around for a while. While the names may chance, i.e. MySpace eclipsed by Facebook, which will be eclipsed by something else, the general principals and lessons we can learn from looking at examples, cases and stories remain. I hope to provide those lessons in this manual.

Many businesses, big and small as well as their employees maintain accounts on social

media sites like Facebook, Twitter, and LinkedIn. With the explosion in the use of social-media sites, the inclusion of these accounts in the discovery process has become increasingly relevant. Discovery of social-media accounts has become common place in many employment discrimination cases as well as personal injury cases, and courts have even begun to allow requests for party’s social-media accounts to be used to show a party’s emotions, mental states, post-termination employment, and financial conditions. See, Doug Oldham, Social Media Discovery Increasingly Important in Commercial Litigation. (Lexology.com 6/27/14). [http://www.lexology.com/library/detail.aspx?g=8e736e79-b193-4d3c-98de-f77b591f48a7]

It is clear that social media has become pervasive in the personal and business lives of clients and their adversaries. Lawyers need to catch up with the times and can no longer afford

to ignore information and evidence that can be found on a person’s social media profile and be used as evidence. The courts have even ruled that lawyers can use social media as a means to conduct juror research. Lawyer’s need to be wary of not only the opposition’s social media presence, but their own client’s social media presence as well. New steps must be taken in advising clients to disable but not delete accounts, to request that opposition’s accounts be preserved. The courts need to be aware of the impact of social media as well, particularly when dealing with juror misconduct due to internet use to either discuss or research relevant information in regards to the

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case at hand. Marlisse Silver Sween, Trial Lawyers Can’t Ignore Social Media. (Lawtechnologynews.com 7/7/14). [http://www.lawtechnologynews.com/printerfriendly/id=1202662167310]

Today, everyone has a digital identity whether they like it or not. You can either manage your identity through the creation of a social media profile or leave it to a search engine to piece together a digital identity; that identity may not always be the image you would like to project. Many professionals, in addition to the biography on their firm’s site, have Facebook, Twitter and LinkedIn profiles which they use to craft an online presence. While it takes time and has risks, having an online presence can allow you to control your message. (See, Diane Darling, Social Media: Risks and Rewards (ABA 5/20/14). [http://apps.americanbar.org/litigation/committees/womanadvocate/articles/spring2014-0514-social-media-risks-rewards.html]

The ever changing landscape of social media continued its rapid evolution in 2014. Users became more cautious about social networks such as Facebook when the extent to which Facebook manipulated user’s news feeds came to light. However, while competitor networks sprung up, none have been able to replicate Facebook’s success. Social networks such as Facebook also began to parse out their services into smaller services in an effort to break through the social media “static” and enable users to engage in more purpose driven tasks. Think Instagram to share photos, Facebook Messenger to chat with friends and the main Facebook app to catch up on news. Through all that, messaging became king with apps such as WhatsApp, Snapchat, Line, Viber, WeChat leaving conventional text messaging in the dust. The way we interact on social networks began to change in 2014. Instead of friend requesting people, social networks began to push a “follow” model where users followed each other without the formality of a friend request. Finally, in a throwback to the early web days, several networks and apps arose that allowed users to post content anonymously, without using their real names. Ritika Trikha, 5 Big Trends that Shaped Social Media in 2014 (ReadWrite, 12/31/14) [http://readwrite.com/2014/12/31/2014-social-trends]

General Stats There are 7 billion people in the world. Roughly 3 billion of them are on the internet. 72 % of online adults (74% women and 70% men) are connected to one or more social

media platforms. 89% of those aged 18-29 are connected to one or more social media platforms. 50% of social media users say they check in to their favorite networks first thing in the

morning. The number of smartphones shipments is expected to be almost one billion in 2015. 53% of American cellphone (mobile) users now have a smartphone. 38% of people who use social media on mobile devices cite general browsing as their main

activity. Half of all social media users are between 25 and 44 years old, but the age distribution

varies widely across social networks. Reddit and Tumblr are among the “youngest”

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networks, with half or more of users under 35 years old. Twitter is about in the middle (55% of users age 35 or older) while 65% of Facebook users are over 35 (started exclusively with college students) and LinkedIn is the “oldest” network, with 79% of users age 35 and older. [http://thesocialskinny.com/100-social-media-mobile-and-internet-statistics-for-2012/;http://www.business2community.com/social-media/87-more-vital-social-media-marketing-facts-and-stats-for-2012-0307891and http://pewinternet.org/Commentary/2012/March/Pew-Internet-Social-Networking-full-detail.aspx]; [https://www.linkedin.com/pulse/article/20141118182103-28964915-social-media-user-statistics-age-demographics-for-2014]

Social Media Platform Stats Overall, 13% of digital news consumers follow news recommendations on both Facebook and Twitter. More than twice as many digital news consumers follow news recommendations from Facebook than from Twitter (consistent across computers, smartphones, or tablets)

Pinterest o In November 2014 Pinterest had 70 million users. o Pinterest is retaining and engaging users 2-3 times better than Twitter was at a

similar time in Twitter’s company history. o 80% of Pinterest’s user base are women. o Over 80% of Pinterest pins are ‘repins’ (content already pinned being re-pinned by

users).

Twitter o In November 2014 Twitter had 271 million active users o Users post 340 million tweets per day. o Twitter accounts for approx. 3.61% of referral traffic (according to Shareaholic

study). o 36% of Twitter users tweet at least once per day, with an average visit time of 11:50

minutes Twitter users send 175 million tweets each day 64% of users access Twitter via twitter.com.

o The top three countries on Twitter: USA (108 million), Brazil (33 million) and Japan (30 million) $259 million is Twitter’s projected ad revenue in 2012 1 million accounts are added to Twitter every day.

o See, Hanna Ingber, Twitter Illiterate? Mastering the @BC’s (10/23/13) [http://www.nytimes.com/2013/10/24/technology/personaltech/twitter-illiterate-mastering-the-bcs.html]

o After analyzing over 37 billion tweets sent over the back 6 years, researchers found that over half of the tweets are now sent from mobile devices. However, 32.5 percent of twitter accounts have not tweeted in the past year. See, Sherry Karabin, Twitter Grows Up, and Old. (Lawtechnology.com 5/15/14). [http://www.lawtechnologynews.com/id=1202655488683/Twitter-Grows-Up,-and-Old?slreturn=20140608104508]


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Facebook o In July 2015 Facebook had 1.49 billion users. o 700 million people on Messenger, with 45 billion messages sent daily.

[http://twistedsifter.com/2015/04/facebook-ecosystem-monthly-usage-stats-q1-2015/]

o Facebook accounts for approx. 26% of referral traffic. o They announced their billionth user in October of 2012; appears to have leveled off

at the billion mark. [http://appsaga.com/facebook-confirms-it-has-1-billion-active-mobile-users-200-million-

instagram-users/] o More than 500 million people log in to Facebook each day and post 3.2 billion

“likes” and comments. o 31% check in more than once a day. o 73% of users believe that another social network will eclipse Facebook.

Google+

o In February 2012 Google+ had 90 million users. o Google+ accounts for about 0.22% of referral traffic. o Users average of 6 minutes on the site per log in. o Just 29% of Google+ users are female. o 44% of Google+ users are single. o The top ten countries using Google+: USA (31%), India (14%), Brazil (5%), UK

(4%), Canada (2.5%), Germany (2%), Indonesia (1.8%) and Italy, Mexico and Spain (1.7%) The top occupation is student (20%) The Google+ button is used more than 5 billion times each day.

o China and Iran block access to Google+

Instagram: 300 million users . Sean O’Kane, Instagram Is Now Bigger Than Twitter, (The Verge, 12/10/14) [http://www.theverge.com/2014/12/10/7369309/instagram-bigger-than-twitter-300-million-active-monthly-

users]

LinkedIn o 25 Million LinkedIn Profile Pages Viewed Daily. o 300 million registered users.

[http://thenextweb.com/insider/2014/04/18/linkedin-tops-300-million-registered-users-hones-mobile/] o 75 of the Fortune 100 use LinkedIn in their corporate process. o LinkedIn adds 175,000 profiles per day. o LinkedIn has seen 3 billion people searches since September (and should hit 5

billion this year). [http://therealtimereport.com/2012/10/19/social-networking-stats-25-million-linkedin-profile-

pages-viewed-daily-rltm-scoreboard/]

Some Others: Qzone: 599 million monthly active users (TechCrunch); Sina Weibo: over

368 million (China Daily Renren): Renren over 170 million users (iResearch iUser Tracker); Tumblr: 77 million blogs (Tumblr) (and is biggest social media site for 13-25 year olds); Tagged: 20 million unique monthly users (Tagged); Foursquare: over 25 million users (SmartBlog);


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Posterous: 15 million monthly users (Posterous); Reddit: 42 million unique monthly visitors (Reddit); Periscope: 10 million users. Yik Yak: 100K active users and 15K messages a day and growing. Much like Facebook did - it is growing a campus at a time. Yik Yak Is An Anonymous Messaging App Aimed At College Campuses [http://techcrunch.com/2014/02/19/yik-yak-is-an-anonymous-messaging-app-

aimed-at-college-campuses/]; Cluster is an app that allows user to streamline their social-media profiles by grouping individuals together based on their relationships and the content that users want to share with them. Rollin Bishop, Cluster, An App for Creating Private group Space and Specific Social Networks, (Laughingsquid.com 5/22/14). [http://laughingsquid.com/cluster-an-app-for-creating-private-group-spaces-and-

specific-social-networks/]. Secret allows users to share their feelings and thoughts anonymously amongst Facebook friends or people in their contacts; Shots is an social network app designed for those who want to take and share selfies amongst friends; Snapchat allows users to share “self-destructing” photos and videos between each other that disappear from the user’s phone after a pre-set time period; WeChat allows users to text, send voice messages, send videos and photos as well as make free phone calls; We Heart It is similar to Pinterest, but aimed at younger users. Instead of boards, the app provides canvases; Tinder is an app that has made match making as easy as viewing a user photo and swiping yes or no to indicate interest; Medium is a platform that allows to publish essays, articles and ideas while recommending other stories to those in their network; Vine (owned by Twitter) allows users to share videos of no more than six seconds, continuously looped; Bubblews is a social networking startup that differs from others in that it pays its users who attract advertisers and traffic to the site; Whisper is a platform similar to Secret and allows users to anonymously share secrets. Kyli Singh, 10 Rising Social Networks You Should Explore, (Mashable, July 28, 2014) [http://mashable.com/2014/07/28/social-networks-on-the-rise/]. Ello. An invite-only ad-free social network. Its user content is viewable to the public. Sarah Gray, Hello, Ello! What You Need to Know About the New Social Network Stealing Users from Facebook, (Salon.com 9/26/14) [http://www.salon.com/2014/09/26/hello_ello_what_you_need_to_know_the_new_social_network_stealing_users_from_facebook/]

50% of people now consume breaking news through social media as opposed to traditional media outlets. Law enforcement utilizes social media to track criminals bragging about their crimes online. 1 in 6 job seekers utilize social media to secure a job. Social media has fuelled political change and boosted the music industry. It’s no wonder that Americans age 18-34 spend on average 3.8 hours per day consuming social media. Social Media is Changing the World in Unexpected Ways (Bitrebels.com 7/27/13) [http://www.bitrebels.com/social/social-media-is-changing-the-world-ways]

Roger Yu, Minorities Rush to Twitter, Instagram, Smartphones (USA Today

2/14/13). [http://www.usatoday.com/story/tech/2013/02/14/pew-social-media-survey/1921115/]

Francis Rey, Nearly 2 in 5 Tablet Owners Read Newspapers, Magazines on Their

Devices (SocialBarrel 10/20/12) [http://socialbarrel.com/nearly-2-in-5-tablet-owners-read-newspapers-magazines-on-their-devices/45351/]


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Adam Popescu, Just Who Uses Social Media? A Demographic Breakdown, (Mashable 4/13/13). [http://mashable.com/2013/04/12/social-media-demographic-breakdown/]

A survey of over 8,000 faculty found that 41% of use social media as a teaching tool,

up from around 34% in 2012. Jonathan Dame, More Professors Using Social Media to Teach (USA Today, 11/4/13) [http://www.usatoday.com/story/news/nation/2013/11/02/social-media-teaching-tool/3377929/]

While law firms are historically slow to make use of newer technology, recent studies have shown that firms are now utilizing newer technology such as Facebook, LinkedIn and blogs for marketing purposes. A 2012 survey of lawyers and legal marketers by ALM Legal Intelligence found that: 70 percent of law firms maintain blogs; nearly 50 percent of firms state that social media had helped produce leads for new clients; approximately 40 percent of law firms had garnered new business from social media; half the survey respondents stated that their firms plan to increase social media budgets; and over 20 percent stated that their firms already have a full-time social media specialist on staff. In terms of social media’s impact on In-House Counsel, a 2012 study found that 76 percent of In-House Counsels attribute some level of importance to blogs when looking for firms to retain. (See, Brian Dalton, This ‘Social Media’ Thing Might Not Be A Fad, Law Firms Acknowledge, [Abovethelaw.com 8/7/13]). [http://abovethelaw.com/2013/08/this-social-media-

thing-might-not-be-a-fad-law-firms-acknowledge/]

In one day on the Internet: Enough information is consumed to fill 168 million DVDs 294 billion emails are sent 27% of total US internet time is spent on Social Networking Sites 15% of total US mobile internet time is spent on Social Networking Sites 2 million blog posts are written (enough posts to fill TIME magazine for 770 million years) 40 million visit Twitter 22 million visit LinkedIn 20 million visit Google+ 17 million visit Pinterest 4.7 billion minutes are spent on Facebook 532 million statuses are updated 250 million photos are uploaded 22 million hours of TV and movies are watched on Netflix 864,000 hours of video are uploaded to YouTube More than 35 million apps are downloaded

Social Media affects every aspect of our daily lives whether you choose to participate or not. It cannot be ignored. In the legal field, what was a sub-set of discovery, e-discovery, has become the bulk of discovery today. You as a lawyer have a duty to understand today’s world, your clients and the way social media operates.


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Moreover, what is Social Media and where you find discovery is not always where you might first think. The next generation of video game systems have social media sharing capabilities integrated into the system. In one case a player used a new feature on his PlayStation 4 in an unexpected way. The feature allows players to broadcast live video of their game play and themselves while playing. The player used the feature to broadcast video of his naked wife to unsuspecting viewers. Husband Broadcasts Drunk Naked Wife On PlayStation 4 (NY Post, 11/25/13) [http://nypost.com/2013/11/25/husband-broadcasts-drunk-naked-wife-on-playstation-4]. The next generation of video games (now in use) can share clips and game photos via social media networks. Talk and chat can easily take place. Ebenezer Samuel, System Update: with the Xbox One, PS4 and Wii U All Out, Answering 20 Questions about the Next-gen Console Era (NY Daily News 11/22/13). Then there is the case of Nikki Elise, AKA Sajeden as she’s known to her followers. She is a gamer who streams her game play online to viewers all over the world. Elise was rescued when, during one of her live streams, viewers called the local police after seeing two armed men break into Elise’s home. The viewers were so quick to contact the local authorities that the police arrived on scene while the suspects were still there. The suspects fled and one was apprehended after the police gave chase. Joshua Gardner, Well-known Gamer Rescued from Home Invaders After her Webcam Viewers See Armed Men and Call Police. (Dailymail.co.uk 6/9/14) [http://www.dailymail.co.uk/news/article-2653147/Police-Viewers-online-game-reported-break-in.html]

Social Media also has the potential to greatly affect people’s reputations. It can cause personal and family embarrassment and can greatly affect confidentially and privacy, sometimes all at once: The parents of hundreds of teenagers who threw an out of control party at former NFL player Brian Holloway’s home are threatening to sue Holloway, after Holloway posted the teens’ identities on Twitter. Hundreds of teenagers broke into Holloway’s upstate New York vacation home, and caused at least $20,000 worth of damage. Holloway was alerted to the party, at which copious amounts of drugs and alcohol were present, through the teens’ live tweets on Twitter. Rather than apologize to Holloway, the teens’ parents are now threatening to sue Holloway for damaging the kids’ reputations, and possibly the teens’ college plans by ‘outing them’ on Twitter (Jeane Macintosh, Parents Want to Sue Ex-NFLer After He Outed Hard-Partying Brats, [New York Post 9/20/13] [http://http://nypost.com/2013/09/20/parents-want-to-sue-former-nfler-for-outing-their-

hard-partying-brats/] and Jamie Uribarri, Ex-NFL Star Brian Holloway May be Sued by Parents of Teens Who Allegedly Thrashed His Upstate NY Home, [New York Daily News 9/20/13]) [http://www.nydailynews.com/sports/football/ex-nfl-star-face-lawsuits-parents-house-crashing-teens-article-1.1462008].

Right to Be Forgotten

The European Court of Justice (ECJ) in Google v. AEPD (C-131/12, May 13 2014) ruled that as a general rule, an individual’s privacy rights override the interests of internet users seeking


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information. If an individual wants personal data removed, he must submit the request directly to the search engine. Dr. Martin von Albrecht, European Court of Justice Holds Google Responsible for the Processing of Personal Data from Third-Party Websites (JD Supra, 5/24/14)

[http://www.jdsupra.com/legalnews/european-court-of-justice-holds-google-r-37984] In fact, the ECJ ruled that anyone has the right to be forgotten and that Google must scrub any material that a user wants removed, as long as it does not hurt public interest. Many see this as a clear victory in the protection of personal information. This ruling is based on the reasoning the Google is a controller of web content and as such, the burden is on the company to prove that old content still has a reason to exist. This ruling comes with a lot of questions as to what makes content “relevant” to the public interest. Some are finding that this discretion is too robust and would allow certain parts of history to be rewritten or forgotten all together, such as political and military leaders who are trying to escape past war crimes, making it harder to track down and making them answer for their crimes. See, Jonathan Blitzer, Google Search Results: Dictator Not Found. (New Yorker.com 5/21/14). [http://www.newyorker.com/online/blogs/elements/2014/05/dictator-not-found.html]

In the wake of the European Court of Justice’s “right to be forgotten” decision, Justice Minister Simon Hughes has questioned the logistical feasibility of handling the volume requests seeking removal from the internet. Furthermore, he hinted at the “mischievous” business of online reputation management. To that end, he suggested that there is no unfettered “right to be forgotten” and that he was against the restriction of information. Owen Bowcott, EU ‘Right To Be Forgotten’ Law Unenforceable, Says Justice Minister, (The Guardian 7/9/14). [http://www.theguardian.com/technology/2014/jul/09/eu-right-to-be-forgotten-law-unenforceable-justice-minister-simon-hughes]

Basic Navigation of Social Media Hazards

Despite the numerous laws that a corporation must encounter when it enters the world of social media, if the company is prepared before it launches a site, and is diligent in its review of the site after the launch, it can develop a successful social media program.

From: Tips for Success John Rosenthal and Adam Nadelhaft, How to Navigate Social Media Hazards, (Law Technology News 3/21/14). [http://www.lawtechnologynews.com/id=1202656226550/How-To-

Navigate-Social-Media-Hazards?slreturn=20140502075758]

Determine the scope. Your company should publicly frame what information is on-topic and what is off-topic. This allows the company to remove unwanted and irrelevant comments, including comments related to issues such as concerted dealing (if that is considered off-topic). But the company must be consistent, and remove all off-topic comments—do not discriminate based on the content of off-topic comments.


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Inform the public of the sites where information will be shared. Alert the public to the specific channels the company intends to use, and types of information it may disclose. If the company plans to share any investment information on a particular site, it should give the public an opportunity to become familiar with that site prior to the disclosure of material information on that particular brand of social media.

Terms of use should be clear and prominent. Make sure that all social media includes a terms of use policy that is posted for all users to see. Include a disclaimer that the company will delete any consumer content that is off-topic or is legally inappropriate.

Regularly review the company’s social media. Train your team in all legal issues that a corporation may face while maintaining a social media presence. The team should perform a compliance review for all potential posts from the company before they are launched, including “Likes” and “Re-Tweets.” Regular review of the site will also make sure that information already posted is up-to-date, and that there is no breaches in security. The team should also review UGC to determine if it is legally compliant, and there should be an escalation procedure in place for any questions about content.

Create specific rules for company posts. Before the social media sites are launched, train all potential employee posters about the rules for corporate posts. This will help the compliance team in its review of the sites. In addition, identify personnel authorized to speak through its social media channels.

Be careful using hyperlinks of third-parties. While pasting hyperlinks of third-parties is generally permissible, companies in highly-regulated industries (such as securities and pharmaceuticals) should use caution. They can be held liable for third-party information to which it hyperlinks from its social media, that could be attributable to the company through concepts of entanglement or adoption. This is especially true with the link, which can changed at the whim of a third-party.

Be careful when responding. All public responses should first go through the compliance team. A public response to a comment should be treated the same as an initial post from the company, as a response is subject to the same laws as an original post.

Keep proper preservation rules in place. Courts have held that social media is a form of electronically stored information that falls within the scope of discovery under Federal Rules 26 and 30, and thus there is an obligation to preserve potentially relevant social media. We will discuss this in-depth in the upcoming chapters.


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Keep in mind that there is no bright line rule requiring parties to blanket-preserve social media in all cases or all contexts, the frequency of preservation (e.g., daily, weekly, monthly, etc.), or setting forth preservation and production methodologies. At this time, any company should judge its preservation practices upon what a court is likely to deem as “reasonable” in light of whether: 1) the preservation is for litigation, regulatory or business purposes; 2) the nature of the specific social media site and the degree to which the site is relatively static versus one that is relatively dynamic; and 3) the proportionality of the cost and burden of the preservation, as compared to the materiality and importance of the information maintained on site as it relates to either the litigation, business or regulatory need.

A company or law form needs to be well-prepared before it launches social media. But with the right guidance and training, a company can navigate the legal waters to smooth sailing on the new social media wave. And if an attorney is embarking on social media than he or she will also have to be concerned with the various ethical rules dealing with Social Media and other technology.


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Chapter 3: Civil Legal Issues

Personal Injury Law

While “day in a life” videos have been used for a long time in PI lawsuits, now those videos and pictures are provided directly by the litigants themselves via Facebook and YouTube. You only have to find them.

And what about our cars? They now can be spying on our driving. Ninety-six percent of passenger cars built in 2013 are equipped with Event Data Recorders or “EDRs.” These EDRs function as car safety-related data collection devices that track the speed of a vehicle, indicates whether an occupant’s seat belt is buckled and determines the timing of air bag deployment post-accident. The rationale behind EDRs is that the recorded data helps parties understand how drivers respond in a crash and whether key safety systems operated properly in these scenarios. The information generated by EDRs is of incredible importance to car manufacturers because (1) it helps manufacturers avoid lawsuits based on automobile defects; (2) bolsters relationships between insurance companies and manufacturers through mutual agreement on the necessity of EDRs; and (3) helps manufacturers better comply with state and federal regulations on driver safety and privacy.

In 2014, the National Highway Traffic Safety Administration (“NHTSA”) proposed a rule mandating that all new vehicles manufactured in 2014 include an EDR. Congress, wanting to ensure that a driver’s privacy remain protected, proposed the Driver Privacy Act (“DPA”). The DPA stated that EDR information belongs to the owner of the vehicle and can only be collected in limited situations through court authorization, the vehicle owner’s consent or the information is retrieved through a NHTSA recall. Critics, including advocates for the Electronic Privacy Information Center (“EPIC”), feared massive data collection from EDRs without any amendment to existing regulation. They argued the DPA does not limit the types of data collected by an EDR, impose data security requirements or even allow vehicle owners the right to know what kinds of information is collected and who is looking through it.

A California Court of Appeals case, People v. Diaz, 213 Cal App 4th 743 (Cal Ct App 2013), involved EDR data obtained in a warrantless car search. The defendant claimed her Fourth Amendment search and seizure rights were violated when police inspected the EDR information in her car that showed the defendant was speeding at the time of the fatal accident. In rejecting the defendant’s argument the Court noted that although a vehicle is protected from an unreasonable search by the Fourth Amendment, there is a lesser expectation of privacy in the speed on a public highway because it can be observed through other devices such as radar guns. In other words, EDR data “merely captured information the defendant knowingly exposed to the public” and was not an infringement of her privacy. (Id. at 757.) Furthermore, Supreme Court cases have held that

msciarri

Draft


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EDR data can be seized and downloaded without a warrant after an accident simply due to the inherent mobility of a vehicle.

The Driver Privacy Act has since been voted on and passed unanimously by the Senate Commerce Committee in 2015. Under the Act, EDR data can only be obtained with: (1) a court or administrative order; (2) consent of a car owner or lessee; (3) a federal transportation safety investigation if personal information is redacted; (4) emergency crash medical response; or (5) traffic safety research if personal information is redacted. See, Richard Raysman and Peter Brown, Implications of Mandatory ‘Black Boxes’ in Vehicles, (NYLJ 6/10/2014).

Discovery

Obtaining Social Media Communications & the Ethical Implications of “Self-Help”. ‘Self-help’ searches, which are cost-effective and simple, consists of utilizing social media as a means to the discovery process. A lawyer can conduct an Internet search or a social media search of a party or witness to obtain information, as long as the lawyer does not engage in deceptive practices such as ‘friending’ and ‘following’ on social media in order access private content. A user’s consent is required for a social networking site to produce a user’s private information/records. If a user refuses to give consent, a party requesting the information can move to compel and seek a court order. With regard to interrogatories, depositions, and production of documents, a lawyer is permitted to inquire about a witness’s social media activity and request for production of documents to which the responding party can grant access. See, Elizabeth M. Lally, Discoverability of Social Media (Rubin-levin.com 5/29/14); John G. Browning, Digging for the Digital Dirt: Discovery and Use of Evidence from Social Media Sites, 14 SMU Sci. & Tech. L. Rev. 465 (2011).

Looking specifically to Pennsylvania case-law concerning Facebook, courts have favored

a liberal discovery policy, allowing discovery of even the “private parts” of social media by compelling discovery of a party’s social-media login information. In Peronne v. Rose City HMA, No. CI-11-14933 (C.C.P. Lancaster County May 3, 2013), a more recent Pennsylvania case dealing with social media discovery, the court diverged from prior Pennsylvania case-law finding that retention of a neutral forensic expert was more appropriate than compelling production of private social media log-in information. This is similar to the assignment of a ‘discovery master’ in normal tangible discovery. The authors of this article conclude that while social media is a fairly new concept, courts are applying principles of paper discovery to electronic communications. As such, litigators should be aware of current trends within the courts and act accordingly. See generally, Mark Dillon, Discovery of Private Social Media Postings, (NYLJ 4/9/13); See also, Michael Pullano & Matthew Laver, Discovery Rulings Increasingly Unfriendly to Facebook Users’ Privacy


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Rights, (Bloomberglaw.com 9/30/13). [http://about.bloomberglaw.com/practitioner-contributions/discovery-

rulings-increasingly-unfriendly-to-facebook-users-privacy-rights/]

Let’s look at several case examples where the courts have allowed access to a party’s social media activities and other cases where the court did not allow that discovery.

Allowed

Romano v Steelcase, Inc., (30 Misc 3d 426 [Sup Ct, Suffolk Co, 2010]). In a personal injury action, defendant sought access to the full history of plaintiff’s Facebook and Myspace accounts, including deleted pages, on the grounds that the content therein was believed to be inconsistent with her claims, especially that for loss of enjoyment of life. Upon finding that the information was both material and necessary to the defense of the action, the Court ordered plaintiff to provide a properly executed consent and authorization, as may be required by Facebook and Myspace, permitting defendant to gain access to her social networking records. The court held that plaintiff, by creating her online accounts, consented to sharing her personal information and cannot now claim a reasonable expectation of privacy. Defendant furthermore established that its need for access to the information outweighed any privacy concerns of the plaintiff. Defendant had attempted to obtain the sought after information via other means such as deposition and notice of discovery; however, they proved to be inadequate since counsel thwarted defendant’s attempt to question plaintiff in this regard.

Caraballo v City of New York, (2011 NY Slip Op 30605[U] [Sup Ct, Richmond Co, Mar 4, 2011]) In a personal injury action, defendant sought to compel authorizations from plaintiff to access his current and historical Facebook, Myspace and Twitter pages and accounts, including all deleted pages and related information. In support of the motion, defendant maintained that the information was "just as relevant as plaintiff's medical records to the extent that there are photographs, status reports and videos that depict plaintiff engaging in activities that contradict his injury claims." As authority, defendant relied on an unpublished decision in an unrelated action, Fernandez v Metropolitan Tr. Auth. (Index No. 102662/09), wherein the plaintiff had testified at her deposition as to the types of information she posted on the networking site Myspace. In denying the present application, the court (Justice Aliotta) noted that unlike Fernandez, the defendant here "failed to establish a factual predicate with respect to the relevancy of the information the sites may contain."

Loporcaro v City of New York and Perfetto Contracting, 35 Misc.3d 1209(A) (Sup Ct, Richmond Co, 2012) In this case, Justice Aliotta granted the defendants’ motion to compel production of the plaintiff’s full Facebook account. Why is it different than Caraballo, infra? Here the plaintiff’s public profile, depicting plaintiff living an “active lifestyle,”


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contradicted his alleged knee injuries. The Court reasoned, “... clearly our present discovery statutes do not allow that the contents of such accounts should be treated differently from the rules applied to any other discovery material...” The court added, “since it appears that plaintiff has voluntarily posted at least some information about himself on Facebook which may contradict the claims made by him in the present action, he cannot claim that these postings are now somehow privileged or immune from discovery.”

Potts v. Dollar Tree Stores, Inc., (2013 US Dist LEXIS 38795 [USDC MD Tenn Mar. 20, 2013]). This case involved several discovery disputes challenging the plaintiff's discovery production. The defendant requested "Facebook and/or other social media data" and "any computers or digital storage devices used by either plaintiff during and after her employment with defendant." The plaintiff's successfully challenged the Facebook production as the defendants had failed to make a threshold showing that "publicly available information on [Facebook] undermines the Plaintiff's claims." However, the plaintiff unsuccessfully challenged the production of the computer as unduly burdensome. The court agreed that the physical production of the computer could lead to admissible evidence, however the parties were ordered to "agree to a word search of Plaintiff's computer by an agreed neutral party."). See, Relevance, Social Media & Personal Computers (Bowtielaw.com 3/25/13). [http://bowtielaw.wordpress.com/2013/03/25/relevance-social-media-

personal-computers]

Paccione v. Bradica, (Index No. 12383/2011 [Sup Ct, Nassau Co, May 1, 2013]). Plaintiff claimed that his injuries as a result of an accident were permanent in nature and caused limitation in motion. However, the plaintiff’s Facebook page shows pictures of his trips and vacation post-accident. The court found that the Facebook page contained information that was probative of the issue of the extent of plaintiff’s injury. The court held that since plaintiff’s testimony contradicted what he stated in his Facebook page the defendants access to other portions of the plaintiff’s Facebook records was reasonable to the discovery of relevant information.

Wilson v. Fantastic Trans Corp (Index No. 18563/2010 (Sup Ct, Nassau Co, Jun 24, 2013]) Plaintiff claimed that she can no longer teach dance and perform at fundraisers due to injuries cause by the accident. Court ordered plaintiff to produce any and all relevant pictures or posting from her person Facebook account post-accident.

In Pereira v. City of New York (2013 WL 3497615[Sup Ct, Queens Co, Jun 19, 2013]). The court found that, where the publicly available postings were probative of the issue, it is reasonable to believe that other portions of his Facebook account may contain further relevant information.


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Jennings v. TD Bank, (Index No. 601947/2012 [Sup Ct, Nassau Co, Jul 8, 2013]). The court held the information contained on plaintiff’s Facebook account is “material and necessary” and plaintiff’s privacy concerns are outweighed by defendants’ need for the information. The court noted that because the plaintiff “voluntarily and purposefully” posted such photographs, it is reasonable to believe that there is relevant information in addition to the photographs. If plaintiff is unable to recover any deleted material, plaintiff is directed to obtain her entire record from Facebook, including any records previously deleted or archived by the operators of Facebook.

Tailor your Requests Narrowly: Wilkinson v. Greater Dayton Reg’l Transit Auth., (US Dist LEXIS 64522 [US DC SD Ohio May 9, 2014]). In a class action against the Greater Dayton Regional Transit Authority (GDRTA) under the Family and Medical Leave Act plaintiffs were requested to produce:

“[a]ny notes, diaries, logs, journals, letters, electronic mail, text messages, calendars, Facebook postings, tweets, or other social media messages that relate or refer to your employment with the GDRTA, your alleged serious health conditions, or your activities on days when you requested FMLA leave.”

The district court ordered plaintiffs to fully respond to that request since it sought

information about health conditions that gave rise to the FMLA leave requests. Other discovery requests made by the GDRTA were restricted by the court, however. These requests included those directed at communications relating to medical and psychiatric treatment plaintiffs may have had during the relevant period. The court limited these requests since they might include records that were unrelated to the health conditions giving rise to the plaintiff’s FMLA claims. The court ordered plaintiffs’ counsel to procure and produce those records deemed relevant and discoverable and to produce a report relating to any records not produced, any redactions made, and the reasons for not producing those records. Many attorneys have a difficult time making requests for that information, oftentimes not offering any narrowing language to the request. These fishing expedition requests show that some attorneys do not know the nature of the information they are dealing with. The request made in this case, GDRTA’s request No. 9, was properly narrowed to the issues at hand, relating only to information relevant to the lawsuit itself, and not relating to an adversary’s entire social media profile. Social Media Request for Production That Got It Right, (BowTieLaw.Wordpress.com 5/14/2014) [https://bowtielaw.wordpress.com/2014/05/14/social-media-request-for-production-that-got-it-right/]


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Not Allowed

McCann v Harleysville Ins. Co., (78 AD3d 1524 [App Div, 4th Dept 2010]). In a personal injury action stemming from an automobile collision, defendant moved to compel an authorization for plaintiff’s Facebook account. On one hand, the Appellate Division affirmed the Supreme Court’s denial of the motion, as the defendant failed to establish a factual predicate with respect to the relevance of the evidence. The Appellate Division noted that indeed, the defendant essentially sought permission to conduct a Facebook “fishing expedition.” However, it modified the order to delete the granting of a protective order to Plaintiff, stating that the lower court “abused its discretion in prohibiting defendant from seeking disclosure of Plaintiff’s Facebook account at a future date.”

Abrams v Pecile, (83 AD3d 527 [App Div, 1st Dept 2011]). In an action involving conversion and intentional infliction of emotional distress, the Appellate Division, in reversing the trial court’s decision, denied defendant’s request for access to plaintiff’s social networking accounts, as “no showing has been made that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims.”

Ackerman v Lori Realty ( Index No. 107982/2009 [Sup Ct , NY Co, Nov. 21, 2011]) the court held that the disclosure of Facebook page denied as the records were "palpably irrelevant and [defendant had] not made any contrary argument."

Fawcett v Altieri, (2013 NY Slip Op 23010 [Sup Ct, Richmond Co. Jan 11, 2013]). This case stems from an altercation at a high school tennis match between two students. The plaintiff set out a cause of action for assault, battery, negligence and loss of services. During the course of the case the defendants demanded authorizations to access and obtain copies of plaintiff's "current and historical records and/or information and photographs on Plaintiff's social media website pages, including but not limited to Facebook, Myspace, Friendster, Flickr, and any other social media websites." The defendant stated that the plaintiff's accounts requested have been made private and no information was available to the public. The court (Justice Maltese) held that when discovery of a private account is sought, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs relevant to the facts of the case. Therefore, the motions to produce the social media account authorizations was denied. Further, the court stated that courts should not accommodate blanket searches for any kind of social media to impeach a plaintiff's character with facts irrelevant to the case at hand. (See, James G. Ryan, New York’s Two Prong Analysis for Production of Social Media [JD Supra.com 3/7/13]) [http://www.jdsupra.com/legalnews/new-yorks-two-prong-analysis-for-produc-60946/]


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The Fawcett Two Prong Standard:

1. the “inquiry requires a determination by the court as to whether the content contained on/in a social media account is ‘material and necessary;’” and

2. a balancing test must be conducted as to “whether the production of this content would result in a violation of the account holder’s privacy rights.”

Kramer v Elrac, Inc. (Index No. 105273/2009 [Sup Ct, NY Co, Jan 18, 2012]). Defendant

did not inquire at plaintiff's deposition regarding her use of social media and did not establish a factual predicate with respect to the relevancy of the evidence sought, and the contention that plaintiff "must have" further electronic communications regarding her damages, in addition to what was produced, was insufficient to warrant discovery of plaintiff's Facebook and other social media accounts.

Tapp v New York State Urban Development Corp. (2013 NY Slip Op 00547 [App Div, 1st Dept Jan 31, 2013). The court held that the underlying determination by the trial court that the plaintiff's mere use of a Facebook page was an insufficient basis to compel the plaintiff to provide access to the account or have the court conduct an in camera review of the account was proper. A moving party must establish a factual predicate for their request by identifying relevant information in the account. Merely alleging that the Facebook

postings may reveal activities that contradict with plaintiff's disability claim amounts to nothing more than a fishing expedition. (See, also, Pecile v. Titan Capital Group, LLC [2014 NY Slop Op 00425 (App Div 1st Dept 2014)].

The First Department ruled in Spearin v. Linmar (2015 NY Slip Op 05118, [App Div 1st Dept 2015]) that even when a litigant has shown that there was relevant evidence contained in an adversary’s social media account, unrestricted access is not appropriate. In Spearin, plaintiff claimed he suffered from pain, depression and anxiety, in addition to the inability to play the piano, due to the defendant’s negligent actions. The defendant sought pictures from the plaintiff’s Facebook account after discovering the plaintiff’s public profile photo which showed him sitting in front of a piano. The lower court granted complete access to all of plaintiff’s Facebook photos. On appeal, the court ruled that ordering access to all

photos on the account was overbroad. Instead, the lower court should have ordered production of plaintiff’s Facebook photos for in camera review where a determination would be made as to which records were relevant. See, Ben Bedell, Panel Faults Unrestricted Access to Facebook Page, (NYLJ, 6/18/15).


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Rypkema v NY & Atlantic Railway Co. (Index No.26871/2009 [Sup Ct, Queens Co, Oct 11, 2011]) Claim that plaintiff testified to having gone on post-accident vacations was insufficient to permit unlimited access to plaintiff's Facebook account, including deleted pages, and that it would lead to evidence that was material and necessary to defendant's defense.

New York courts are increasingly dealing with social media discovery issues. In order to deal with this new phenomenon, the courts permit attorneys to access social media evidence “only when doing so would lead to a reasonable likelihood of obtaining evidence relevant to the issues at hand.” In Del Gallo v. City of New York (2014 NY Slip Op 50929, 2014 NY Misc LEXIS 2630 [Sup Ct, NY Co, June 17, 2014]), the plaintiff (a mother) was injured and her infant daughter died in Central Park when a tree limb fell on them. The defendants wanted the mother’s password and full access to her “LinkedIn” account. In determining whether to permit social media accounts into discovery, the Court applied a two-prong analysis; the court considered if the information in the account is “material and necessary”, then the court balances whether obtaining the information would violate any privacy rights. The court held that the defendants were authorized to utilize the plaintiff’s LinkedIn account to gather information of the plaintiff’s communications with recruiters and job offers. The defendants were prevented from using the account to gather communications regarding the plaintiff’s condition and similar material relating to the post-accident since defendants failed to demonstrate why they were entitled to that information. The court reasoned that the discovery of social media accounts “requires the application of basic discovery principles in a novel context”. Nicole Black, Legal Loop: Courts Still Grapple With Social Media Evidence Discovery, The Daily Record (6/29/14) [http://nydailyrecord.com/blog/2014/06/29/legal-loop-courts-still-grapple-with-social-media-evidence-discovery/]

Authorizations

Lowlor v Fenezia (Index No. 8873/2010 [Sup Ct, Nassau Co, Oct. 3, 2011]). Motion court ordered that plaintiff provide authorization to her Facebook and Myspace accounts for photographs posted by plaintiff of her trip to the Bahamas on the basis that plaintiffs personal injury action placed her physical and emotional condition at issue, and denied plaintiffs access to defendant's Facebook account, where plaintiff failed to establish that the information sought was relevant.

Patterson v Turner Construction Co., (88 AD3d 617 [App Div, 1st Dept 2011]). Appellate Division reversed an order that compelled an authorization for "all of plaintiffs Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived" and remanded for a "more specific identification of


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plaintiffs Facebook information that is relevant, in that it contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims." Appellate Division found that, although the motion court's in camera review established that at least some of the discovery sought “will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims...it is possible that not all Facebook communications are related to the events that gave rise to plaintiff's cause of action.” Appellate Division noted that the postings on plaintiffs "online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access, just as relevant matter from a personal diary is discoverable."

Abizeid v Turner Construction, (Ind No. 23538/10 Unpublished [Sup Ct, Nassau Co, Sep 5, 2012). The defendants served plaintiff’s counsel with a demand for Facebook authorizations after discovering photographs on the plaintiff’s public Facebook page, depicting the plaintiff on vacation, engaged in strenuous activities such as off-roading in an ATV, at a time when she claimed she was depressed and in constant pain. After service of the discovery demands, plaintiff subsequently deleted and or restricted her privacy settings on her page. The court, granted defendants’ motion compelling disclosure and ordered plaintiff to provide defendants with an authorization for the contents of her Facebook account as it existed at the time of the demand for authorizations.

Giacchetto v. Patchogue-Medford Union Free School Dist., (No. CV 11-6323(ADS) (AKT), 2013 WL 2897054 [USDC EDNY, May 6, 2013]). Plaintiff-elementary school teacher sued defendant-School District, for violating Americans with Disabilities Act and New York State Human Rights Law. The plaintiff asserted that she was diagnosed with adult Attention Deficit Hyperactivity Disorder and that school district failed to accommodate her disability. The defendant filed motion to compel her to authorize release of all records from her social networking accounts arguing that the information from social networking accounts was relevant because it reflected the plaintiff’s “levels of social interaction and daily functioning” and her “emotional and psychological state.” Plaintiff argued request was based on pure speculation designed to harass her and impinge on her privacy. The court applied FRCP 26(b)(1), providing that parties “may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense,” and said ruled was to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” The fact that the defendant was seeking social networking information rather than “traditional” discovery materials did not change court’s analysis. However, the court cautioned that fact that defendant sought and “electronic file” rather than a “file cabinet” did not give it right to “rummage through the entire file.” The defendant’s discovery motion was limited to: (1) postings about plaintiff’s emotional and psychological well-being (e.g., references to diagnosable condition or visits to medical professionals; references to potential alternative stressor); (2) postings about plaintiff’s physical damages (e.g.,


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postings or photographs that reflect physical capabilities inconsistent with claimed injury); (3) any accounts of events alleged in plaintiff’s complaint. The court directed the plaintiff’s counsel to review the postings within 21 days postings to determine their relevance, bearing in mind broad scope of discovery under Rule 26. (See also, Sara Hutchins Jodka, Court Orders Plaintiff-Employee to Produce Social Media Postings on Claimed Emotional Distress, Alternative Potential Stressors and More, [Employer Law Report, 6/18/13]) [http://www.employerlawreport.com/2013/06/articles/social-media-1/court-orders-plaintiffemployee-to-

produce-social-media-postings-on-claimed-emotional-distress-alternative-potential-stressors-and-more/#axzz2WfdqOjnB]

Cell Phone Records

Personal injury attorneys dealing with motor vehicle accident cases frequently seek cell phone records of either the plaintiff or defendant to prove negligence. Despite the prevalence of cell phone use while driving, the general rule is that in order to obtain cell phone records, a party must demonstrate a good faith basis to believe the opposing driver was using a cell phone at or around the time of the accident. Only then can the records be obtained and entered into evidence subject to a ruling by the trial judge on admissibility. However, recent case law may make it even more difficult to obtain such evidence. In Riley v. California, (134 S. Ct. 2473, [2014]) the United States Supreme Court held that a criminal defendant has a privacy right in the data in his cell phone. Therefore, the court held, a warrant was required to search the phone. While this case is not directly applicable to personal injury cases, it may prompt already reluctant judges to curtail litigant’s access to each other’s phone records. Jeff S. Korek, Obtaining Cell Phone Records in Civil Litigation, (NYLJ 7/21/14). See also, J.P. Murphy & L.K. Marion, “Riley v. California: The Dawn of a New Age of Digital Privacy,” 14 DIGITAL DISCOVERY & E-EVIDENCE, 345 (2014) [http://www.crowell.com/files/Riley-v-California-The-Dawn-of-a-New-Digital-Age-of-Privacy.pdf]

Riley indicated the coming of a new digital revolution. The Court concluded that even though technology enables us to store private information on mobile devices, the government does not have a right to intrude. The Court distinguished searches of mobile devices from that of physical containers because the quality and quantity of the data varies. The government contended that by the time a warrant is obtained, information on the cellphone can be erased. An officer can prevent a potential remote wiping of the cellphone, however, by shutting down the cellphone. To conduct a warrantless search of a mobile device, officers need to consider the exigency of the circumstances. The Court’s decision in Riley exemplified that the court’s viewpoint is evolving with the modern technology age. Justin P. Murphy, of Crowell & Moring LLP, discussed the ‘search incident to arrest’; officers have a right to ensure cellphones are not used or concealed as weapons, but a warrant is still needed. Even with a warrant, the collection of data from cell phones and mobile devices is still a challenge because the technology required to “keep up with the software changes of cell phones often poses a race-against-time strategy for data collection where technology continues to advance at a rapid pace.” Tera Brostoff, Riley’s


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Implications on Future Jurisprudence and Fourth Amendment Discussed in Webinar, The Bureau of National Affairs, Inc., (8/14/14).

Moreover, the “border search” exception was viewed through the Riley lens in United States

v. Kim, (--- F Supp 3d ---, 2015 US Dist LEXIS 60306 [DDC May 8, 2015]). This exception permits the government to conduct a warrantless search at the border in order to protect national security. In Kim, the government searched the defendant’s laptop without a warrant prior to his departure from the United States. After the computer was sent to a forensic specialist for examination, incriminating emails surfaced indicating the defendant violated export control and trade embargo laws with Iran. The government raised the border search exception to counter the defendant’s motion to suppress in court. However the court, in applying the holding in Riley, found that the enhanced privacy interests inherent in laptops and other digital sources outweighed the government’s national security concerns associated with border security. It should be noted that at the time the laptop was confiscated, there was no imminent threat to the country’s welfare that would have justified a warrantless search. Unlike the private search and border search exceptions, the Riley doctrines have not disturbed the applicability of the “third-party consent” exception to the Fourth Amendment. This exception allows for the warrantless search of property or personal effects by authorities relying on the consent of a third party who retains a common relationship to the property being searched. Third-party consent is demonstrated in United States v. Yudong Zhu, (41 F Supp 3d 341 [SDNY 2014]). In Zhu, the FBI seized and searched the defendant’s computer after consent was given by his employer. The court, rejecting the defendant’s Riley approach, concluded no matter how intimate and abundant data contained within an electronic device is, properly granted third party consent to a warrantless search overrides the principles laid forth in Riley. Further, they noted the difference between other exceptions (private search, border search) that are non-consensual searches to third-party consent which infers a voluntary surrendering of at least part of an original privacy interest. As a final point, a federal court in Minnesota demonstrated in Edwards v. United States, (57 F Supp 3d 938 [USDC D Minn 2014]) how the holding in Riley affected the privacy interests of a detainee forced to use a bank card she possessed at the time of her detention to remotely obtain money for a government agent. The plaintiff, a Nigerian woman, was detained upon arrival in an airport by security and was ordered by immigration officials to withdraw $1,200 from her bank account to purchase a return ticket back to Nigeria. When notified by airport personnel that the money was not needed to remove the plaintiff from the United States, the immigration official did not return the money back to the plaintiff. To combat the plaintiff’s claim of conversion, the government claimed sovereign immunity under the “detention of goods” exception which releases the government from liability for injuries resulting from the negligent handling of property in their possession. If goods are seized from an individual by the government as part of an ongoing investigation, immunity forecloses any legal claim. However, since the immigration official seized the plaintiff’s money electronically through her bank card and not on her person, the court declared the use of the card


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at an ATM was an independent activity subsequent to the initial detention. Comparing Riley to Edwards, the phone used in Riley was used as a conduit to seize electronically stored data in the device just as the bank card in Edwards was used to obtain money thus leading the court to conclude the detention of goods exception could not be used as part of an overarching investigation. The analysis of Riley has caused lower courts to reevaluate other exceptions to the Fourth Amendment as well as reframe how courts must approach Forth Amendment searches in light of the rising technological age. See, Richard Raysman and Peter Brown, How Has Digital Ubiquity Affected Fourth Amendment Law, (NYLJ 06/09/15)

In, Thursby v. LaBarbera and Independent Coach Corp., (Index No. 11945/12 [Sup Ct,

Nassau Co, May 29, 2014] the defendant sought an order to obtain the plaintiff’s cellphone records at the time of the car accident. The court held that the phone records must be turned over, but be limited to the time around the accident - “for an hour prior to the accident until fifteen minutes after the accident.” (See also, Sentinel Insurance Company v. Brian Doris and Kevin Doris, (Index No. 12538/2012 [Sup Ct, Nassau Co, April 3, 2014]; Fioribello v. Saul, (Index No. 12979/2012 [Sup Court, Suffolk Co, March 28, 2014] defendant is entitled to the plaintiff’s cellphone records ‘for two hours before and after incident’ on the basis that the information remain confidential and the defendant obtain the Court’s permission prior to using any information.)

In Camera Review

Offenback v L.M. Bowman, Inc. (2011 US Dist. Lexis 66432 [USDC MDPA Jun 22, 2011]) in which a magistrate conducted an in camera review of Facebook page in a personal injury case. His claimed physical injuries included claims of right shoulder and lower back injuries. Accordingly, plaintiff’s physical capabilities and activities were relevant to the review. The court ordered production of information related to plaintiff’s use of motorcycles.

Newman v Johnson & Johnson (Index No. 104403/09 [Sup Ct, NY Co, Jan. 18, 2012]). Plaintiff's decedent passed away following use of a non-prescription topical medication, and defendant's defense was that the decedent likely ingested the medication and committed suicide. In response to defendant's motion to compel production of decedent's Facebook content and e-mails during a specified period, and plaintiff’s cross-motion for a protective order, the court held that such documents should be produced for in camera review by a special referee to “make a determination as to whether such information is subject to disclosure and identify specific information that is discoverable.”

O'Connor v Gin Taxi Inc. (Index No. 110192/2007 [Sup Ct, NY Co, Oct. 14, 2011]) Plaintiff alleged that her injuries prevented her from performing certain physical activities


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and defendant sought certain ESI from plaintiff’s social media accounts, as well as plaintiff's instant message logs and text messages. The court found that, due to the nature of the case, where plaintiff had placed "her ability to perform the activities of her daily living and her ability and capacity to work at issue, plaintiffs status updates, photographs, and videos were both material and necessary to the defense... and/or could lead to admissible evidence." However, taking into account plaintiff's privacy concerns, the court agreed to conduct an in camera review of plaintiff’s Facebook accounts and YouTube videos prior to their production. The court noted that plaintiff was to have preserved all relevant ESI in light of a litigation hold that defendant had asserted. (See, Monique C.M. Leahy, Proof of Instant Message, Blog, or Chat as Evidence. 100 AM. JUR. PROOF OF FACTS

3d 89 [2008; updated 2012]).

Use at Trial

As the presence of social media in our lives increases, so does the presence of social media in litigation. For example, in an Illinois unfair dismissal case, employer defendant was able to use the employee’s Facebook posts to establish that she was not employed on a permanent basis as a pastry chef, but rather worked on a “casual” basis. Anna Ford, Social Media in the Court Room, (Lexology, 5/27/14) [http://www.lexology.com/library/detail.aspx?g=7ff24630-d477-4476-bdd7-7db03608cd0f]

Let’s look at a few case examples illustrating social media use at trial:

Johnson v Ingalls, (95 AD3d 1398 [App Div, 3d Dept 2012]) affirmed defense jury verdict in a personal injury action and sustained introduction into evidence, after an in camera review by the trial court, of post-accident photographs obtained from plaintiff’s Facebook page to counter plaintiff’s claimed injuries

Clement v Johnson's Warehouse Showroom (2012 Ark App 17 [Ark Ct App 2012]). In this Worker’s Compensation claim, Clement suffered a hernia when a refrigerator he was attempting to move fell on him. He then received workers' compensation which paid his medical expenses and temporary total-disability benefits from March 12, 2009 until May 10, 2010, and upon suffering a setback in his recovery, from July 15, 2010 until August 8, 2010. Clement wanted the benefits continued indefinitely because of continued pain but the employer refused as pictures of Clement "drinking and partying" were posted on Myspace and Facebook. These pictures were introduced as evidence at the administrative hearing on his claim for extended benefits and the administrative judge upheld the denial of the continued benefits.


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After breaking up with his fiancée via text, Louis Billittier, Jr. sent a follow up text message: “Plus you get a $50,000 parting ring.” In a suit to recover the ring, a state Supreme Court judge ruled that the jilted fiancée was entitled to keep the ring as a “parting gift,” not a gift in contemplation of marriage. James King, Judge Awards $53,000 Engagement Ring To Woman Dumped Via Text Message After 'She Refused To Sign A Prenuptial Agreement' [Daily Mail, 4/7/14] [http://www.dailymail.co.uk/news/article-2598864/Judge-awards-53-

000-engagement-ring-woman-dumped-text-message.html]

In some cases, social media can do more harm than good. After parents grounded their teenage daughter, she ran away from home and commenced a lawsuit against her parents to pay for her living expenses and tuition as an emancipated child. A Facebook page was created to discuss the issues of the suit; comments were posted such as “suburban baby boomer types are the spoiled lot, they make massive amount of money a year, they are used to flying to luxury destinations……children are always an accessory to them and nothing more.” The judge can consider these posts, which have the potential to tarnish the teen’s credibility and image, in his decision-making. Marlisse Silver Sweeney, Facebook Posts Can Backfire in Court, [Law Technology News, 3/12/14]002E

In personal injury cases, lawyers have relied on doctors to observe someone for half an hour or so and then give their medical opinion in court. Now a law firm in Canada is working on the first known personal injury case that will use data from a Fitbit. A Fitbit is a type of wearable tracker that tracks sleep, steps taken, heart rate, and activity intensity. The case involves a young woman who was injured in an accident four years ago and can no longer work as a personal trainer as a result of the accident. Her lawyers believe with the Fitbit data, they can say “with confidence that she led an active lifestyle.” They hope to utilize the Fitbit data to show that her activity levels are now under a baseline for someone of her age. The legal team is not using the data directly but “pumping it through analytics platform Vivametrica, which uses public research to compare a person’s activity data with that of the general population.” Potentially, this could “open the door to wearable device data being used not just in personal injury claims but in prosecutions.” Insurers may want the data as much as plaintiffs but insurers would not be able to force claimants to wear Fitbits as part of an “assessment period” but instead could request a formal court order from whoever holds the data. See, Parmy Olson, Fitbit Data Now Being Used In The Courtroom, (Forbes 11/16/14) [http://www.forbes.com/sites/parmyolson/2014/11/16/fitbit-data-court-room-personal-

injury-claim/]


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Used in Motions

In a wrongful termination claim, plaintiff was hospitalized on January 3, 2011 due to pregnancy complications. She informed her employer that day, however she did not communicate with her employer again until January 6, 2011. The next day she was informed that she was terminated. The defendant maintained that plaintiff was terminated because of her failure to abide by company policy by not informing defendant of her absences on January 4, 5 and 6. In the defendant’s summary judgment motion, defendant put forth several of the plaintiff’s Facebook posts for the period between January 3 and January 6 as evidence that she was able to communicate with the employer. Although the motion was denied on other grounds, the court did consider the Facebook posts in its decision. Tabani v. IMS Associates, [2013 U.S. Dist. LEXIS 20090, [USDC Nevada, Feb 14, 2013])

In Dooling, the defendants, GSB Mortgage and Bank of the West, were sued for employment discrimination. On a summary judgment motion, defendants argued that the plaintiff was employed solely by GSB Mortgage, which only had 12 employees, therefore GSB was not an “employer” for purposes of the FMLA. However, plaintiff successfully created an issue of fact as to whether the defendants were integrated employers, by demonstrating among other things that GSB Mortgage and Bank of the West had a shared Facebook page. Dooling v. Bank of the West, 2013 US Dist. LEXIS 99618 [USDC ED Texas, Jul 17, 2013]

Sanctions

Chauvin v State Farm (2011 WL 2580660 [USDC EDMI Jun 29, 2011]) involved denial of insurance coverage under no-fault act. State Farm sought plaintiff’s Facebook password and all content. Not relevant to issues in case, because coverage denied on a specific ground. Even sought names and phone numbers of all Facebook friends. Court found requests designed to harass and fined State Farm.

Miscellaneous Case Examples

YouTube Video. Glenn Taylor, an allegedly disabled Boy Scout leader was recorded

knocking over an ancient 2,000 pound sandstone rock formation with his bare hands. Taylor filed a personal injury lawsuit in September 2013 stemming from a car crash which occurred four years prior. In the lawsuit, Taylor alleges that he has “endured great pain


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and suffering, disability, impairment, loss of joy of life” as a result of the car accident. Unfortunately for Taylor, it was recently discovered that his feat of strength was recorded only weeks after his lawsuit was filed. Alan Macdonald, the defendant in the lawsuit, is the father of the then teen driver responsible for the “debilitating” crash in which Taylor suffered his injures. After viewing the video, Macdonald said “I was just a little surprised because he looks like a fairly strong, able-bodied guy to me.” Taylor’s attorney has since issued a statement to the effect that Taylor has been recovering as of late from his injuries, and the video does not mean he was not “terribly injured right after and [that he] required extensive medical bills.” Nina Golgowski, Glen Taylor Filmed Pushing 2,000-Pound Rock One Month After Filing Lawsuit Saying He Was Disabled, Daily News (10/20/13). [http://www.nydailynews.com/news/national/man-pushes-2-000-pound-rock-month-filing-injury-suit-article-1.1490926]

Medical Malpractice. As social media and photo/video sharing become ubiquitous, the

improper disclosure of such media has become a growing concern in the medical profession. While there are completely legitimate reasons why a medical practitioner may share clinical photos with another, there are also less legitimate reasons to do so. To protect against unsavory uses of social media, medical organizations should establish policies which establish expectations for sharing visual and audio content. In addition, secure systems should be put into place that allow the sharing of such media when necessary.

Organizations should be cautioned, however, that even under the most secure system, once media is sent from point A to B, the original sender has little to no control over where it might end up. Jock Hoffman, Doctors, Stay Safe: The Malpractice Implications Of Social Media (KevinMD, 7/6/14) [http://www.kevinmd.com/blog/2014/07/doctors-stay-safe-malpractice-

implications-social-media.html]

A 32-year old woman died after driving into oncoming traffic in the middle of posting selfies and a Facebook status, stating “the happy song makes me HAPPY.” Deborah Hastings, Woman in North Carolina killed while driving and texting about being ‘happy’, New York Daily News, (4/26/14) [http://www.nydailynews.com/news/national/north-carolina-woman-dies-behind-

wheel-texting-happy-article-1.1769965].

In Blayde, the plaintiff successfully utilized social media evidence to demonstrate that the named defendant was the plaintiff’s actual employer. At trial, plaintiff’s supervisor testified that neither he nor the defendant worked for Harrah’s Entertainment or Harrah’s Operating Company. However, plaintiff was able to convince the court otherwise with the help of the supervisor’s LinkedIn profile, which was admitted into evidence, and had Harrah’s Entertainment listed as an employer. Blayde v. Harrah's Entm't, Inc., (2010 U.S. Dist. LEXIS 133990 [US DC WD Tennessee, December 17, 2010]).


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Defamation & Libel (and Twibel)

Libel and defamation is no longer limited to the offline world. A professor sued a disgruntled former student who posted defamatory statements on social media, YouTube and websites dedicated to ranking professors. Often, websites will remove defamatory content if contacted and requested to do so. Marlisse Silver Sweeney, Professor Sues Student Over Social Media (Law Technology News, 5/28/14) [http://www.lawtechnologynews.com/id=1401199625448/Professor-Sues-Student-Over-Social-Media-

?slreturn=20140722160147]

Twitter, Facebook and other social networking sites have become a battleground between two

conflicting concepts: the right to free speech versus the right for another to obtain redress when those words cause harm. In Tennessee, an employee at Southwest Airlines brought an action against a passenger for allegedly posting false and defamatory statements on Twitter and Facebook regarding actions taken by an employee when the passenger attempted to board the plane. The trial courts granted passenger’s motion for summary judgment, holding that the statements made on Twitter and Facebook did not rise to the level of defamation nor false light invasion of privacy. However, on appeal the appeals court reversed the grant of summary judgment on the claim for false light invasion of privacy. See, Richard Raysman, Angry Facebook Post and Tweets by Passenger About an Airport Employee Considered Expressions of Frustration and Therefore Not Defamatory, JDSupra Law News (10/16/13), [http://www.jdsupra.com/legalnews/angry-facebook-posts-andtweets-by-

passe-35013]; See, Jennifer E. Patterson v. Natalie D. Grant-Herms (2013 Tenn App LEXIS 675, [Ct of App TN, Nassville, Jul 11 2013]); Shari Claire Lewis, Defamation Claims Come of Age on the Internet, (NYLJ 2/18/14).

The Handbag Case. (See, Leser v. Penido, 62 AD3d 510 [App Div 1st Dept 2009];

subsequent appeal at 96 AD3d 578 [App Div 1st Dept 2012]; summary judgment granted by 2013 NY Slip Op 30352(U) [Sup Ct NY Co, Feb 21, 2013]). This case concerned a plaintiff who was appointed as a moderator in the Louis Vuitton Forum on the luxury handbag website, “The Purse Forum.” Plaintiff alleged that an industry competitor d/b/a karenkooper.com put her photo and home address on pornographic websites, posted sexual solicitations under her business and real names, and created a blog under her name on which he posted her name, photo, home address, along with pornographic and sexually explicit pictures, graphics, animations, and links to pornographic websites. The plaintiff moved for summary judgment on libel per se and the court granted her motion because she had supported her motion with an abundance of evidence that connected the defendant to the content posted online.

50 Cent. Lastonia Leviston filed a case against Curtis James Jackson III a/k/a 50 Cent (musician) for alleged intentional infliction of emotional distress, violations of NY Civil Rights Law §§ 50 and 51 and defamation. She later withdrew her defamation cause of action. Jackson stated that in 2009 he and Rick Ross, another musician and father of


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Leviston’s daughter, were engaged in a “rap war.” As part of this “rap war,” Jackson through his alter ego “Pimpin’ Curly,” would often post videos on his website that mocked Ross. Leviston stated that she and a man had filmed themselves having sex and that the man gave the tape to Jackson. Jackson later imposed himself as Pimpin’ Curly into the video and posted a trailer for the video on his website. The edited video was later posted on many websites. Leviston stated that she had kept a diary during the period prior to and after the release of the video to keep an accurate log of her emotional distress and diagnoses of various disorders such as major depressive disorder. Jackson moved for summary judgment on Leviston’s claims. The court (Leviston v. Jackson, 2013 NY Slip Op 33388(U) (Sup Ct NY Co, Dec 9, 2013) held that to sustain a claim under §§ 50 and 51, the plaintiff must demonstrate that the defendant used the plaintiff’s name, portrait, picture, or voice in the state of New York for purposes of advertising or trade, without the plaintiff’s written permission. The court granted summary judgment to Jackson on the advertising claim because the court determined that the video was not used for advertising purposes because Jackson had not used the video to solicit patronage or to promote his music. However, the court determined that Jackson was not entitled to summary judgment on the trade claim because the video had generated interest in Jackson and his website and the “rap war,” which constituted a trade purpose. With respect to the emotional distress claim, the court determined that Jackson was not entitled to summary judgment because Leviston’s diary, testimony, and physician’s testimony were sufficient to rebut his motion.

Moving from 50 Cents to: 90 Cents Short of a Dollar. Finkel v Dauber (29 Misc 3d 325 [Sup Ct, Nassau Co, 2010]) Defamation claim stemming from the defendants postings of disparaging messages about plaintiff regarding sexual activity with animals, drug use, having multiple sexually transmitted diseases, patronizing prostitutes and also doctored photos on a "secret" Facebook group called "90 Cents Short of a Dollar." A "secret" Facebook Group has no public content, does not appear on a Facebook member’s profile, and new members must be invited by an administrator. Since the statements were made obviously of an immature manner in an attempt for adolescents to outdo one another, the court held that no reasonable reader of the statements could have concluded that the posts were conveying facts about the plaintiff. Therefore the defamation claim failed. Additionally, the plaintiff raised a claim of negligent entrustment of a dangerous instrument against the defendants' parents, arguing that a computer was a dangerous instrument. However, the court dismissed this claim stating "To declare a computer a dangerous instrument in the hands of teenagers in an age of ubiquitous computer ownership would create an exception that would engulf the rule."

Lawyer’s Claim Dismissed. In (Rokofsky v. Washington Post, 39 Misc 3d 1226 (Sup Ct NY Co, 2013) a New York lawyer brought suit against news sources that criticized his conduct during a murder trial in Washington DC. Sources reported that the judge in the case granted a mistrial because the court questioned his character, competence, and


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performance. Plaintiff brought suit and proposed a nearly 300 page amended complaint against 74 newspapers, legal reporters, and the like, claiming defamation, intentional infliction of emotional distress, intentional interference with a contract, violation of NY Civil Rights Law §§50 and 51, interference with prospective economic advantage, injurious falsehood, negligence, and “prima facie tort in the form of ‘cyber-bullying’ or mobbing.’ The New York State Supreme Court denied his motion to amend and granted the pre-answer motions made by 59 defendants because the court found that the out-of-state defendants had no purposeful activities in New York that were substantially related to the alleged defamatory comments and dismissed those claims for failure to state a cause of action. The also court concluded that the other defendants were entitled to rely on NY Civil Rights Law § 74’s “fair report” and “republication exception” privileges. Lastly, the court determined that the statements regarding tricking a witness were non-actionable opinions, since they were discussions about whether the plaintiff had acted ethically. The court cited a decision by the Appellate Division, First Department and reasoned that content on the internet is more likely to be perceived as opinion.

Spousal Privilege. Medcalf v. Walsh, (2013 US Dist LEXIS 51246 [US DC SDNY, Apr. 9, 2013]). This case briefly addressed the spousal privilege as applied to email in the context of a defamation litigation. The plaintiff's claim was in part based on the contents of the defendant-spouses' email communications, which the Plaintiff had accessed and discovered in her capacity as assistant to one of the defendants. In dismissing the complaint, the Court held that under NY defamation law "all communications between [spouses], on any subject, [a]re absolutely privileged based on [the spouses'] status as a married couple" and therefore could not satisfy the publication element of the defamation claim.

Hyperlink Liability. Adelson v. Harris, (2013 US Dist LEXIS 141053, [US DC SDNY,

Sep 30, 2013]) a recent case decided by Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York, answered some important questions and gave some excellent guidance to attorneys faced with defamation, republication and related issues in the online context. Here the decision went on to highlight that a hyperlink may attach some liability in that it gives direct access to the source. The court rejected plaintiff's argument that a hyperlink fails to provide sufficient attribution because it is not part of the "four corners of a publication" and requires "external navigation," analogizing that a footnote could similarly be regarded as requiring a trip to the library. Further, it found no reason to believe that footnotes are read more frequently than hyperlinks are clicked on. The court wrote: "It is to be expected, and celebrated, that the increasing access to information should decrease the need for defamation suits. “See, Stephen M. Kramarsky, Court Addresses Use of Hyperlinked Sources to Avoid Libel Claim, (NYLJ 11/26/13)

Bloggers Have 1st Amendment Rights. See, Jeff Barnard, Court: Bloggers Have First

Amendment Protections, (Mercurynews.com 1/18/14) Crystal L. Cox, a blogger from


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Montana, was sued for defamation by Oregon attorney Kevin Padrick and his company, Obsidian Finance Group LLC, after she made posts on several websites accusing them of fraud, corruption, and money laundering (among other illegal activities). Padrick and Obsidian were hired by Summit Accommodators to advise them, before they filed for Chapter 11 bankruptcy, and the U.S. Bankruptcy Court later appointed Padrick the trustee in the case. In 2011, a jury had awarded Padrick and Obsidian $2.5 million in damages; however, the 9th U.S. Circuit Court of Appeals ordered a new trial and found that bloggers and the public have the same First Amendment protections as journalists when being sued for defamation (Gertz v. Robert Welch Inc., [418 US 323 (1974)]) apply to everyone, and not just journalists [http://www.mercurynews.com/nation-world/ci_24940768/court-bloggers-have-first-amendment-

protections]

Twibel Cases. A 2010 tweet by Courtney Love alleged that her lawyer at the time, Rhonda Holmes, had been “bought off” when she refused to help Love in a legal battle with the managers of Kurt Cobain’s (Love’s late husband) estate. Some Twitter libel (“Twibel”) cases have been filed, but this is the first one that has made it to trial in the U.S. This case may determine that tweets or tweeting in California can give rise to defamation liability, even for the average person. See, ABC News, Courtney Love Defends Tweet in ‘Twibel’ Defamation Suit, (Abcnews.go.com 1/16/14). [http://abcnews.go.com/blogs/entertainment/2014/01/twibel-

courtney-love-defends-tweet-in-defamation-suit/] Twitter defamation trials are showing up across the United States and overseas as well. Individuals should be cautioned that even if a tweet is subsequently deleted, a screen shot can preserve it forever. Sherry Karabin, Love Courts Defamation on Twitter, (Law Technology News 6/19/14).

[http://www.lawtechnologynews.com/id=1202660164197/Love-Courts-Defamation-on-Twitter]

Is an Online Provider a Publisher? See, Joseph D’ Ambrosio & Andrew I. Mandelbaum, When Does Internet Service Provider Lose Immunity? (NYLJ 2/20/14). Communications Decency Act of 1996, Section 230 (“CDA 230”) protects providers of online services from being treated as the publisher of actionable content placed on their websites by third parties. While historically courts have held that CDA 230 protects websites from liability unless the website creates or develops the content, recent decisions have suggested that “develop” means more than only being the author of or creating actionable content. CDA 230 was passed in response to two cases in the 1990’s that developed the idea that websites should be treated differently than traditional publishers because they did not monitor or create posts that had given rise to liability. CDA states (in relevant part) that it does not provide immunity to parties who are “responsible, in whole or in part, for the creation or development of information.” Early CDA cases dealt primarily with neutral websites such as Google and AOL, but now that gossip websites and blogs have been mainstreamed, these types of websites could give rise to liability. Some courts have determined that encouraging unlawful content is sufficient to constitute development. Others, such as the Ninth Circuit, did not expand the word “develop” to include encourage.


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Bad Breakup: In Wender v. Silberling, (No. 160505/13 [Sup Ct, NY Co. Jul 8, 2014 (NYLJ 7/18/14)]), after the parties ended their personal relationship, the plaintiff commenced a lawsuit for defamation after the defendant posted unfavorable statements about the plaintiff on blogs and through emails to the plaintiff and family members. Defendant moved for an order to dismiss the complaint but was denied since she failed to show the blog statements fell outside the statute of limitation, which is one year for a cause of defamation. In response to the defendant’s motion seeking dismissal on the grounds that the statements were non-actionable opinions, the court held that since “a literary impersonation that imputes facts to the person impersonated is sufficient to state a cause of action for defamation”, the defendant’s published confessional autobiography on behalf of the plaintiff constituted as defamation. In addition, defendant’s motion seeking to quash the non-party subpoenas was denied under the grounds that the subpoenas can be beneficial in identifying those people who made the defamatory statements.

Parental Liability? Georgia’s Court of Appeals ruled in Boston v. Athearn (2014 GA App LEXIS 664 [Ct of App of Georgia, 1st Div, Oct 10, 2014]) that parents of a teenager can be found liable for defamation after he created a Facebook page to show a classmate making profane comments because the parents failed to remove the page. Though Georgia law does not hold parents liable for their minor children’s torts, parents can be held liable based on negligence, such as allowing the child to have “unsupervised control of a dangerous instrumentality”. The Court of Appeals clarified that a common object, such as a computer and the Internet, “could become dangerous if it is intentionally used to cause harm or is handled in an improper and dangerous manner”. A jury has the right to determine whether the parents had a duty to take down the page once they learned that their son created an unauthorized Facebook account by hijacking a classmate’s name and face for the phony Facebook page. Greg Land, Court Says Parents of Facebook Phony Can Be Liable for Defamation, Daily Report (10/15/14), [http://www.dailyreportonline.com/id=1202673356039/Court-Says-Parents-

of-Facebook-Phony-Can-Be-Liable-for-Defamation?slreturn=20140921125630].

Who gave me that bad review on Avvo? In Thomson v. Doe, (2015 Wash. App. LEXIS 1434 [Court of Appeals, Washington, 2015]) a Washington attorney sought to compel online attorney directory Avvo to reveal the identity of a reviewer who left an allegedly defamatory review about the attorney. In denying the plaintiff’s application, the court recognized that the defendant’s review was not political speech (warranting the highest standard), nor was it commercial speech (warranting the lowest standard). Rather, it was something in between and therefore the court applied a prima facie standard. Applying that standard, the court held that the plaintiff failed to make out a prima facie case against the defendant. In Washington state, that means the plaintiff would have had to provided “evidence of sufficient circumstances which would support a logical and reasonable inference of the facts sought to be proved. “Washington State court Refuses To Unmask


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Anonymous Online Reviewer (Lexology, 8/10/15) [http://www.lexology.com/library/detail.aspx?g=bdf28945-

5380-44f5-b0b7-2e80dd0a0bfa]

Sexual Harassment

The ease of communication in today’s world also makes it extremely easy to harass, sexual or otherwise, the person at the other end of the cell phone. All you need is their cell number, or their @target on twitter.

Three men who were harassed by business man Charles Rodrick after he obtained their information from the websites Offendex.com, SORArchives, and SexOffenderrecord.com were awarded 3.4million by a jury. Rodrick is accused of running an internet extortion racket where he would use public records to demand money from sex offenders and harassing those who complained. Rodricks sites would data mine police records and posting the information on his websites in order to extort money from his victims in exchange for the promise to remove their information. The site listed individuals as sex offenders who were no longer required to register or whose names had been removed from the sex-offender database. The site also contained personal information on people who had never been convicted as a sexual offender. Robert Anglen, Sex Offender Websites’ Victims Awarded 3.4M, (USA Today 5/16/2014). [http://www.usatoday.com/story/news/nation/2014/05/16/sex-offender-websites-victims-awarded-34m-/9195315/] Targonski v Oak Ridge, (2012 WL 2930813 [Dis Ct ED Tenn July 18, 2012]). The plaintiff in a hostile environment sexual harassment case complained of sexual rumors circulating about her in the workplace. She testified: “I’m a Christian and I strive really hard to be a moral person. So for someone to start thinking of me as someone who has orgy parties at my house while my son is home, that’s severely humiliating to me.” The defendant attempted to show that the rumors could not have been subjectively offensive to the plaintiff given posts from the plaintiff’s Facebook page that discussed orgies to be filmed by her husband.

A hiring attorney at a law firm used his cell phone to send inappropriate sexual text messages to a recent hire. As a result, the attorney was suspended. In issuing the suspension, the court pointed to aggravating factors such as the vulnerability and resulting harm to the victim (a recent law school graduate) and the fact that the attorney acted with a dishonest or selfish motive. Kailee M. Goold, Court Hammers Attorney for Inappropriate Texts and Pressure to Law Clerk, (Lexology.com 6/19/14) [https://www.lexology.com/library/detail.aspx?g=ebe7faa0-4f3b-4cb8-a339-3203977c85d4]

In Odam v. Fred’s Stores of Tennessee, (2013 US DIST LEXIS 175040 [USDC Middle District, Georgia, Dec 11, 2013] the plaintiff sued her ex-employer for sexual harassment alleging that her supervisor sexually harassed her from November 2011 through February 2012. In a summary judgment motion, the defendant asserted an affirmative defense, namely that defendant


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"exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and the employee "unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." In ruling in favor of the defendant, the court held “[j]udging by Plaintiff's Facebook posts on the day after she quit her job, she had internet access and could reasonably have discovered the designated procedure for reporting sexual harassment even if she had mislaid Fred's anti-harassment policy.”

Social media evidence can also be used to demonstrate that alleged harassing conduct was not

in fact unwelcome. Such was the case in Gelpi, where the plaintiff’s sexual harassment claim consisting of unwelcome sexual banter was belief by her Facebook posts which revealed that she was “very comfortable with sexual humor” and which contained “numerous comments and e-cards making sexual references and jokes.” Furthermore, the court stated, the plaintiff was Facebook

friends with most of her co-workers which would have given them reason to believe that jokes of a sexual nature were funny. Gelpi v. AutoZoners, LLC, (2014 US Dist. LEXIS 38477 [US DC ND Ohio, Mar 24, 2014])

See, Janon Fisher, Technology Sends Perv-cam Cases Soaring (NY Daily News 10/29/12)

[http://articles.nydailynews.com/2012-10-29/news/34782912_1_pen-camera-cell-phone-cameras-subway-station]

Harassment/Cyber-Bullying

The New York Court of appeals rejected a county Anti-Cyberbullying law because its overly broad language violated the First amendment. The Anti-Cyberbullying law language prohibited cyberbullying “against any minor or person” and implicated criminal penalties for violators. The provision protected all person’s children and adults from cyberbullying. The Court found that parts of the legislation could not have been severed and a judicial rewrite would encroach upon legislative powers. Even though the law was struck down Cyberbullying laws against minors remain in effect. The defendant in People v. Marquan M, (23 NY 3d 980 [2014]) was criminally prosecuted and sentenced for violating a Cyberbullying law when he created a Facebook page consisting of pictures and sexually explicit comments of his fellow students. The defendant appealed his conviction on the grounds that the Cyberbullying law violated the free speech clause of the first amendment and was unlawfully vague. The state argued that portions of the statue were invalid and should be stricter however the statue should be construed in accordance with its original intent. The Court found that the law used overly broad language and deleting a few phrases did not fit within the constitutional framework. Further, the Court found that rewriting


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the statute would encroach upon the legislative duties in writing the law. On the contrary, the dissent disagreed and held that portions of the statute could be severed without interfering with the intent of the statute. See, Brendan Pierson, Divided Court Strikes Down County’s Cyberbullying Law, (NYLJ 6/2/2014).

A man who was caught dozing off at a Yankees-Red Sox game sued Major League Baseball, ESPN, the Yankees and the two sports commentators after his image was broadcast on national television. While the plaintiff dozed, the sports commentators remarked that he was oblivious and that napping at a baseball game probably wasn’t a good idea. After the broadcast, MLB uploaded the video to MLB.com and YouTube. As a result, the plaintiff was mocked on social media. The lawsuit seems likely to succeed however, as the plaintiff attributed comments made by the internet users to MLB, ESPN and the Yankees. Mike Oz, Fan Who Fell Asleep During Yankees-Red Sox Game Suing For $10 Million, (Yahoo! Sports, 7/7/14) [http://sports.yahoo.com/blogs/big-

league-stew/fan-who-fell-asleep-during-yankees-red-sox-game-suing-for--10-million-203033996.html]

The plaintiff brought an action against Merrick Avenue Middle School (MAM) after they failed to do anything to take any steps to end the cyberbullying of the plaintiff. The plaintiff alleged that there was a video being circulated by two students in which an anonymous woman was engaging in sexual acts. The school was made aware of the video, but failed to take any steps to confront the two students circulating it. Later, the plaintiff alleged that another student posted a comment online which falsely identified her as the woman in the video. After facing ridicule from her fellow classmates, the plaintiff was removed from the school by her parents and placed into another school for her safety. The plaintiff alleged that the school district failure to act violated their duty under the Dignity for All Students Act and the court agreed. Justice Thomas Feinman declared that the district has a duty to all students to act in their protection, and that to use a narrower interpretation of the law would allow schools to turn a blind eye to any incidents that occurred off campus, including the internet. J.G.S. v. Bellmore-Merrick Central Highschool District, [Sup Ct, Nassau Co, May 14 32014]; see also Andrew Kesner, Cyberbullying Law Applies to ‘All’ Students, Court Rules (NYLJ 05/19/2014).

A Texas woman has filed a $123 million lawsuit against Facebook after it failed to take down a “revenge porn” page in a timely manner. The woman alleged that Facebook let the page – which contained fake nude photographs of her – remain up for months until the local police department sent Facebook a subpoena requesting the identity of the poster. Woman sues Facebook for $123 million over ‘revenge porn’ (NY Daily News, 7/31/14). [http://www.nydailynews.com/news/national/texas-woman-sues-facebook-revenge-porn-article-1.1887690/]

Online harassment and insults are making up an increasingly amount of complaints to

police departments. However, the police must consider whether the harassment is criminal or a civil matter. Mere insulting words are usually not criminal in nature. Threats of violence or evidence of domestic abuse, on the other hand, necessitate police involvement. However, even


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then, the police must be able to identify the criminal. Oliver Sweeney, Online abuse - When Is It a Crime? (Lexology.com, 6/24/14) [https://www.lexology.com/library/detail.aspx?g=f54d338d-b37c-44e9-b72c-0809e651eb29].

And in an interesting twist where an intimidating tweet lead to several arrests of the

“tweeters”, a man named Lemon Juice, a Brooklyn native, sought information from Twitter and Blackberry to produce the identity of the operator of the fake Twitter account that used his name. Lemon Juice was arrested after the account tweeted a photo of a sex-abuse victim testifying in court, which investigators later found out was not being operated by its name sake Lemon Juice, but by a third party. Lemon Juice claimed he was set up and wanted to find out who framed him. Daniel Beekman, Brooklyn Man Named Lemon Juice wants Court to Force Twitter, Blackberry to Identify Tweeter who Framed Him (Daily News 04/06/2014) [http://www.nydailynews.com/new-york/nyc-

crime/man-named-lemon-juice-identity-tweeter-framed-article-1.1747946] In another situation, a high school suspended a student for sending text messages to another

friend off school grounds, which threatened to harm a third student. Neither the student’s First Amendment right nor his parents’ Fourteenth Amendment rights to “raise their child as they see fit” were violated. The judge held that the school acted reasonably in giving the student a five-day suspension because if the school failed to intervene, a third student would have suffered. To further support this conclusion, the student’s texts referenced another student who was recently physically attacked, and the student’s text included a symbol of a handgun. Joel Stashenko, Judge Upholds Suspensions Over Threatening Student, (NYLJ 9/30/14). In the case, the defendant’s motion for summary judgment was granted. Plaintiffs allege C.B. was wrongfully suspended by Defendant for text messages C.B. sent to another student outside of school grounds regarding harming a third student. Plaintiffs claimed that the defendants violated C.B’s First Amendment right and the Plaintiffs were denied their due process under the Fourteenth Amendment to raise their child as they see fit. The court reasoned that First Amendment rights “must be applied in light of the special characteristics of the school environment”. School administrators may disciplines students for off-campus speech where there was a reasonably foreseeable risk that the school officials would see the speech in question and a reasonably foreseeable risk that the speech would “materially and substantially disrupt the work and discipline of a school.” With regards to parental rights under the Fourteenth Amendment, the parental right to control a child’s upbringing must yield to a school’s ability to control the school environment in some circumstances. Bradford v. Norwich City Sch. Dist., (2014 US Dist LEXIS 132431 [US DC NDNY, Sep 22, 2014]).

Twitter and Women, Action & the Media, a nonprofit group, came together to implement a tool that allows Twitter users to report abuse or harassment. In addition, the users will receive a response within 24 hours of submitting their reports. Ryan Gajewski, Twitter Rolls Out New Tool to Stop Harassment, Hollywood Reporter, (11/10/14), [http://www.hollywoodreporter.com/news/twitter-rolls-new-tool-

stop-747770].


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A study conducted by the U.S. Department of Justice suggests that 850,000 American adults, predominantly women, are targets for cyber-stalking each year. Thirty-eight percent of women harassed online reported the experience to be very emotionally distressing. Danielle Citron, an expert in the cyber-stalking field and author of Hate Crimes in Cyberspace, has defined cyber-stalking as a “repeated course of conduct that is aimed at a person designed to cause emotional distress and fear of physical harm.” Cyber-stalking can include threats of violence, spreading lies as affirmed facts, posting sensitive information online and technological attacks such as hacking or taking over another person’s account. Cyber-stalking victims can take their complaints to either criminal or civil court. Under tort law, victims can sue for an assortment of claims such as defamation, intentional infliction of emotional distress, harassment, and public disclosure of private fact. However, very few cyber-stalking cases have been reported in America due to the high expenses of trial and its long, emotionally draining process. In the criminal realm, federal cyber-stalking laws have been enacted in approximately half of the states and grant authorities the power to press charges against people engaging in cyber stalking and cyber harassment. In 1999, California enacted the first cyber-stalking legislation which led to the conviction of Gary Dellapenta, a man who placed ads online about rape fantasies posing as a woman he knew, leading men to appear at her apartment for sex. In 2004, New Jersey was the first to criminalize the disclosure of sexual images without consent as an invasion of privacy. Internationally, Canada has discussed legislation (Protecting Canadians from Online Crime Act) that would make it a criminal offense across the country to non-consensually publish intimate images and grant the court the power to order a Canadian internet service provider to delete images from its server. However, the lack of legal precedent and resources allocated to fighting cyber-stalking through police agencies has made these cases difficult to prosecute. Jayne Hitchcock, president of Working to Halt Online Abuse, listed some initial steps victims can take to protect themselves. First, the victims should contact the relevant authorities and tell their harasser to stop contacting them. Next, they should stop responding to their harassers’ online communications. Finally, victims should keep a well-documented record of all the messages they receive in case the harasser tries to delete the posts themselves. If communications are coming from a social media account, Hitchcock advises users to file complaints with the company, report the messages to social media outlets and block the person from their phone or friend list. See, Marlisse Silver Sweeney, What the Law Can (and Can’t) Do About Online Harassment, [http://www.theatlantic.com/technology/archive/2014/11/what-the-law-can-and-cant-do-about-online-harassment/382638/] (11/14/2014)


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Sexting and Other Forms of Civil Harassment

There is no denying that the younger generations have less modesty in their online communication than in the old day of “passing notes” in class. To help prevent harassment and identity theft before they start, Consumer Reports recommends a number of steps that users can take to protect themselves and their personal information:

1. Think before you type. Even if you delete an account (which takes Facebook about a month), some info can remain in Facebook’s computers for up to 90 days.

2. Regularly check your exposure. Each month, check out how your page looks to others. Review individual privacy settings if necessary.

3. Protect basic information. Set the audience for profile items, such as your town or employer. And remember: Sharing info with “friends of friends” could expose it to tens of thousands.

4. Know what you can’t protect. Your name and profile picture are public. To protect your identity, don’t use a photo, or use one that doesn’t show your face.

5. “UnPublic” your wall. Set the audience for all previous wall posts to just friends. 6. Turn off Tag Suggest. If you’d rather not have Facebook automatically recognize your face

in photos, disable that feature in your privacy settings. The information will be deleted. 7. Block apps and sites that snoop. Unless you intercede, friends can share personal

information about you with apps. To block that, use controls to limit the info apps can see. 8. Keep wall posts from friends. You don’t have to share every wall post with every friend.

You can also keep certain people from viewing specific items in your profile. 9. When all else fails, deactivate. When you deactivate your account, Facebook retains your

profile data, but the account is made temporarily inaccessible. Deleting an account, on the other hand, makes it inaccessible to you forever. See, Aaron Kase, Facebook Ignores Harassment Complaints (Law.com 5/21/12) [http://blogs.lawyers.com/2012/05/facebook-ignores-harassment-

complaints/] When a female social activist received threats over Twitter after successfully lobbying for the addition of Jane Austen to the 10 pound note in Britain. As a result of community outrage,

Twitter reiterated that it will suspend accounts that are in violation of its rules. In addition, Twitter stated that it would expand its “Report Abuse” button to the Twitter website as well as the Android app. Nick Schifrin, After Outcry, Twitter Expands Abuse

Button (ABC News, 7/30/13), [http://abcnews.go.com/Technology/outcry-twitter-expands-abuse-button/story?id=19817466]. In Glendale, California the school system is paying $40,500 to Geo Listening, to monitor and report on 14,000 middle and high school students’ posts on Twitter, Facebook, and other social media for one year. Chris Frydrych, the CEO of the firm, stated that the firm scours the social media postings of Glendale students aged 13 and older –the age which parental permission is not required for the school’s contracted monitoring–and sends a daily report to principals on which students’ comments could be a cause of concern. The firm doesn’t hack into private postings by


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students, nor their e-mails or text messages. Students are free to adjust their privacy settings if they don’t want the world to see their Tweets or Facebook updates. Frydrych employs no more than 10 full-time staffers– as well as “a larger portion” of contract workers across the globe who labor a maximum of four hours a day because “the content they read is so dark and heavy”. The firm is about to expand schools’ monitoring capacity with a new smartphone app that allows students and parents to anonymously report to and correspond with school officials about conduct and violations. (See Michael Martinez, California School District Hires Firm to Monitor Students’ Social Media, CNN [09/14/2013]).

Eavesdropping

Have you ever checked out your boyfriend’s cell phone, or your wife’s emails? How about your children’s? What about if it’s for their safety?

Actions involving spyware programs are on the rise and have been found in many different forms. Recently these actions have taken the form of actions between spouses in a pending divorce action for improper spying, a federal indictment against a company for distributing spyware, and finally a defamation suit between fierce online advertising competitors.

The LaRocca’s were in a lengthy divorce proceeding when during discovery Mr. LaRocca was exposed to have installed a spyware program on his wife’s computer. Mr. LaRocca did not dispute installing the spyware, instead arguing that he was nevertheless immune from liability for doing so under an “interspousal exception.” Unfortunately for Mr. LaRocca the court refused to accept his broad reading of the “interspousal exception,” finding that the exception only applied to a husband wiretapping his wife’s phone calls. Here Mr. LaRocca had installed the invasive software during divorce proceedings, on his wife’s computer, and collected all the data from his wife’s computer. This meant that Mr. LaRocca was able to intercept emails between his wife and her attorney, emails clearly protected by attorney-client privilege. The court thus rejected Mr. LaRocca’s broad reading of the “interspousal exception” as it would have permitted a broad invasion of information and privacy, much broader than simply listening in on someone’s phone calls. See, Richard Raysman and Peter Brown, Recent Legal Consequences for Spyware Users, (NYLJ 12/9/14)

Akbar was recently indicted for violations of 18 USC §2512, which prohibits the “manufacture, distribution, possession and advertising of wire, oral, or electronic communication intercepting devices.” The StealthGenie app, designed by Akbar, “permitted the purchaser to record all incoming and outgoing calls of the target’s smartphone, intercept all of those calls, and monitor the target’s text messages and emails.” Like with the snooping husband above, a third party had to install the program on the target device, but upon doing so had virtually full access to all the activity on that device. Akbar advertised the app on its website, and in particular marketed


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the app to the “spousal cheat” market. Not only was Akbar charged with violating this particular statute of its own accord, but it was also charged with a conspiracy through supplying a co-conspirator with the app’s source code and disseminating advertisements for the app. Akbar was ultimately caught in the act when it sold the Android version of the app to an undercover FBI agent. (See, id).

Finally, two online advertisers went two to two over an alleged defamation. Broadspring sued Congoo alleging that Congoo’s Senior VP of Business Development was posting on internet forums in a defamatory manner under a pseudonym. The posts claimed that Broadspring was formerly “Mindest Interactive, a notorious spyware company,” that Mindset was founded by someone known as “Spamford Wallace”, and finally that Mindset was shut down by the FTC for distributing spyware. Congoo’s motion for summary judgment was denied, despite Congoo’s relying on the First Amendment in its defense. The judge didn’t buy the First Amendment argument finding that the alleged defamatory remarks “imply provably false assertions” and in no way constituted a protected expression of opinion. (See, id).

Lack of third party liability Hayes v Spectorsoft Corp. (2009 WL 3713284 [Dist Ct ED

Tenn Nov 23, 2009]) Plaintiff’s ex-spouse used a keylogger created by defendant to eavesdrop on plaintiff’s instant messages, email and browsing activities. Defendant created two pieces of software used by plaintiff’s ex-wife. Plaintiff alleged violations of the Electronic Communications Privacy Act in addition to a negligence, and products liability claims. With respect to the ECPA claim, the court held that the plaintiff could not prove that the defendant had the “conscious objective” to cause the unlawful surveillance and disclosure, despite the fact that the defendant marketed the software to spouses who were conducting surveillance. The court also relied on the fact that the person who installed the keylogger clicked through a terms of use agreement which contained a representation that the software would only be installed on computers which the user owned, or was authorized to be installed on. The court granted the defendant’s motion for summary judgment and dismissed the case because the software could be used to conduct multiple lawful activities and the defendant did not conduct the eavesdropping themselves but merely provided the tools to do so. (See also, Bridget Rhode and Sara Crasson, Government Access to Email and Data Stored Online, (NYLJ 1/29/13).

However, Virginia federal prosecutors invoked the 1986 Electronic Communications Privacy Act (ECPA) to initiate a first of its kind prosecution of a spy software manufacturer. In the indictment, the government charged Hammad Akbar with manufacturing, advertising and selling a mobile phone spyware application called “StealthGenie.” Previous prosecutions under this act involved the use of a physical device such as a microphone, tape recorder or cable box to intercept private communications. Although the ECPA has previously been expanded beyond voice communications to include electronic communications such as cable signals, there is no precedent for


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prosecuting the manufacturer of software under the act. The critical issue in this case will be whether a software application can be considered a “device” for purposes of the ECPA. Michael Pusateri, Prosecution Of Retails Spyware App Publisher Raises Questions (Lexology, 10/24/14) [http://www.lexology.com/library/detail.aspx?g=0f6494af-145a-4c21-8a31-b58deafba99a]

Is Google Eavesdropping? A federal judge in California has held that Google must face a lawsuit which alleges that the company has illegally opened and read emails sent through its Gmail service. Such action would constitute a violation of Federal Wiretapping Statutes. To defend its actions, Google has stated that machines, not people automatically scan emails to target unwanted advertising. Google further argued that the claims should be dismissed as users agree to let the company read emails by accepting the service’s terms and privacy policy. Judge Lucy Koh disagreed, holding that no one had consented to Google’s reading of email for the purposes of creating user profiles or providing targeting advertising. (See, Jessica Guynn, Google Must Face Suit Over Scanning of Messages in Gmail, Judge Rules, Los Angeles Times (9/26/13).

[http://www.latimes.com/business/technology/la-fi-tn-google-gmail-scanning-lawsuit-judge-ruling-20130926,0,5198528.story]

22 individuals sued Google after it was revealed that the internet giant accidentally collected email messages, user passwords and other user content from 2008 to 2010 during its Street View neighborhood mapping program. Google initially argued that wi-fi networks were akin to AM/FM signals and thus accessible to the general public and not subject to the Wiretap Act. However, an appeals court ruled otherwise and the suit continued. As part of pre-trial discovery, the two sides were given 28 days to agree on a neutral technical expert to analyze Google hard drives in an effort to ascertain what if any content was actually collected from the 22 plaintiffs. Karen Gullo, Google Wi-Fi Roundup Has Lawyers Chasing Landmark Jackpot (Bloomberg News, September 24, 2014) [http://www.bloomberg.com/news/2014-09-24/google-wi-fi-roundup-mistake-has-lawyers-eyeing-jackpot.html]

Copyright and Trademarks In one of the first cases to address the usage of images that users upload on social media, a District Court Judge for the Southern District of NY held in Agence France Presse v Morel that the defendants (Agence France Presse and the Washington Post) infringed the plaintiff's copyright when they used pictures in news stories that the plaintiff took and uploaded to Twitter. The defendant's argued that posting the pictures on Twitter made them freely available. However, nothing in Twitter's Terms of Service supported the defendant's argument. Therefore, the judge held that the plaintiff always retained the copyright in the pictures and the defendant news agencies infringed upon this copyright by using the plaintiff's pictures without a license. (See, Erin Smith, News Outlets Improperly Used Photos Posted to Twitter: Judge, [The Baltimore Sun 1/1513]), [http://www.baltimoresun.com/news/nation-world/sns-rt-us-socialmedia-copyright-rulingbre90e11p-20130115,0,3971823.story]


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Another interesting issue is whether Google can demonstration that its digitization project, the Google Library Project, constitutes “fair use” under the Copyright Act. A NYLJ Article reviews recent jurisprudence addressing fair use and suggests that key consideration for courts is whether use of copyrighted material is “transformative.” Fair use doctrine applied by courts distinguishes between re-use that “merely repackages and republishes the original” and secondary use that “adds value to the original.” Latter is considered transformative. Article suggests that if Google can show that its project is transformative – e.g., will provide benefit to public at large – while also benefitting authors of copyrighted works (by increasing the visibility of those works) and protecting authors’ rights (by limiting portion of copyrighted texts accessible through search), it may be able to show that its project constitutes fair use. Stephen Kramarsky, What is Fair Use? Google May Have the Answer, New York Law Journal (7/16/13) [http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202610952208&What_Is_Fair_Use_Google_May_Have_the_Answer&slreturn=20130623122015]

How about “likes?” Are they intellectual property? In Mattocks v. Black Entertainment Television, LLC, (2014 US Dist. LEXIS 115829 [US DC SD Fla. Sep 20, 2014]), the court held

that Facebook “likes” are not a form of intellectual property and therefore cannot be stolen. Plaintiff Mattocks created a Facebook fan page for the CW Network television series “The Game”. After BET acquired the series, BET hired Mattocks part-time to

work on the fan page, provided her with exclusive content (such as links to video clips and photographs) for the page, and BET displayed its trademarks and logos in the header of the Facebook page. During the time in which Mattocks worked for BET, the “likes” on the fan page increased from two million to over six million. Mattocks and BET entered into an agreement which

essentially gave BET full access to the fan page, enabling BET to gain administrative access in order to update the page contents within its discretion. During discussions of the possibility of BET employing Mattocks full-time, Mattocks informed BET she would restrict its administrative access until they came to an agreement concerning her employment. Since BET lost access to its fan page, BET requested that Facebook migrate fans to a newly created official page and BET terminated its agreement with Mattocks, asking Mattocks to refrain from using any BET material on the page. Facebook followed BET’s request and shut down Mattocks’ fan page. The court rejected Mattocks’ claim that BET had converted her business interest in the fan page; Facebook “likes” are not property interests because users can rescind them at any time. Naresh Kilaru, Court says Facebook “likes” not a Form of IP Right, Lexology, (9/4/14) [https://www.lexology.com/library/detail.aspx?g=fad0464c-d29b-4e37-b94d-0f6caa551ff8].

Greek yogurt purveyor Chobani, was sued for copyright infringement stemming from its ad campaign featuring the slogan “How Matters.” To support his case, the plaintiff cited a tweet sent to him from Chobani prior to the launch of its campaign. The tweet read: “@DovSeidman Thanks for inspiring the world to care about ‘how.’ Can you help inspire the food industry, too? thundeclap.it/howmatters.’” Abigail Tracy, Chobani Is Being Sued For A Whole Lot Of Money


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Over This Tweet, (Business Inisder, 6/5/13) [http://www.businessinsider.com/the-tweet-that-could-cost-chobani-millions-

2014-6]

A Federal Appeals Court rejected an attempt to trademark the name of a political group called “Stop Islamization of America” because the name is too offensive to Muslims. The group’s founder, Pamela Geller, is most notable for leading protests against the building of a mosque near ground zero in New York. The court determined that the group name was not eligible for a federal trademark because it suggests a connection between “peaceful political Islamization” and terrorism. The Federal court payed special attention to the specific way the term Islamization was used by Geller’s group. In re Geller, 2014 US App LEXIS 8867 (USCA Fed Cir May 13 2014); see also Jacob Gershman, Appeals Court Says ‘Islamization’ Trademark is Too Offensive (Wall Street Journal, 05/13/2014) [http://blogs.wsj.com/law/2014/05/13/appeals-court-says-islamization-trademark-is-too-offensive/]; see also Diane Bartz, U.S. Court says Trademarks can’t Disparage Religious, Ethnic Groups, (Reuters 05/13/2014). [http://www.reuters.com/article/2014/05/13/us-trademark-islamisation-idUSBREA4C0Z320140513]

Plaintiffs Miranda Tan and Hassan Miah brought a suit against John Doe, alleging in part copyright infringement and violations of the Computer Fraud and Abuse Act (CFAA). Plaintiff Tan alleges that the defendant knowingly accessed her Facebook account, knowingly used her private pictures without her authorization. The court held that the plaintiff failed to state a claim under CFAA because they did not allege that the defendant accessed a protected computer, or that there was any damage or loss. The court also ruled against the copyright claim because the plaintiff do not possess a legally valid copyright on the photo. Tan v Doe, 14-cv-2663, (USDC SDNY May 1, 2014 (NYLJ 05/13/2014).

In, New York Eye Surgery Association v. Kim, (2014 NY Slip Op 31808(U) [Sup Ct, NY Co July 98, 2014]) a defendant’s counterclaims survived a motion to dismiss. The motion was brought in a breach of contract claim brought against the defendant for breaching his no-compete and no-solicitation agreements with his employer. The defendant, in his counterclaims, made claims under the CFAA and the SCA alleging that his employer unlawfully accessed his files and stored information. The employer disagreed, saying that they had lawful access to the defendant’s records, files, and activities. The court in deciding the motion said that these factual issues were dispositive in denying the motion to dismiss, explaining that these are issues “more appropriately raised on summary judgment or trial.” The Computer Fraud and Abuse Act, which defendant

principally relies on, grants a private cause of action to an individual against anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains…information from any protected computer.”

A California federal district court ruled that while an ISP can shield itself from liability by removing copyright infringing material after receiving a Digital Millennium Copyright Act (DMCA) notice, it still must comply with subpoena requirements even after the material is removed. The court reasoned that while the ISP established a safe harbor for itself, the protection


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does not apply to the subscriber publishing the infringing materials. Therefore, upon service of a valid subpoena, the ISP must still provide information “sufficient to identify the alleged infringer.” (DCMA § 512[h][3]) DMCA compliance requires removal of infringing materials and responding to a DMCA subpoena (Lexology, 7/22/15) [https://www.lexology.com/library/detail.aspx?g=9bf2a592-95ae-46e2-8d8a-

c4dcc4bb1b4e]

For Further Information: o Sheri Qualters, Can a Tweet Take Down a Cease and Desist? - The Latest Tactic in

Trademark Battles: Social Media Warfare (The National Law Journal 10/22/12). [http://alm-editorial-us.msgfocus.com/c/1fEBmEvcZRsJuQsIVCyA69ESj]

o Kerry Gorgone, The Essential Guide to Minimizing Legal Risks in Social Media

Marketing (Grow 10/24/12). [http://www.businessesgrow.com/2012/10/24/minimizing-legal-risks-in-social-media-

marketing/]

o Shari Claire Lewis, Court Clarifies Copyright Issues of Online Photo Posting, (NYLJ 2/19/13).

Sports Law Issues

Even professional athletes need to carefully monitor and curate their social media profiles. Jimmy Graham learned this the hard way during arbitration. The NFL argued that Graham was a tight end, thus entitled to $7 million (as opposed to a wide receiver which would entitle him to $12 million.) Amongst other evidence, the NFL cited Graham’s own Twitter profile where he states: “New Orleans Saints Tight End #80. Private pilot.” Lesson learned: there is nothing wrong with using social media, but be aware that it could have very real repercussions in the real world. Matt Fitzgerald, How Jimmy Graham’s Twitter Bio Could Cost Him $5M, (Bleacher Report, 6/17/14), [http://bleacherreport.com/articles/2100519-how-jimmy-grahams-twitter-bio-could-cost-him-5m]

Penn State Offensive Line Coach Herb Hand took to Twitter to tell his followers that he dropped a prospect due to his social media presence. In an interview, he elaborated: “If a guy makes the decision to post or RT stuff that degrades women, references drug use or cyber-bullying crap, then I can make the decision to drop them. Especially if I have discussed it with them prior, and especially in today's climate of athletics.” Student athletes and social media should take heed: their social media activity is fair game. Gene J. Puskar, Penn State OL Coach Herb Hand Drops Recruit over Social Media Actions, (Bleacher Report, 7/30/14) [http://bleacherreport.com/articles/2146596-penn-

state-ol-coach-herb-hand-drops-recruit-over-social-media-actions]

Todd Carney, a Cronulla Shark’s Football Club player, had his contract terminated because a photo of him engaging in a lewd act in a nightclub bathroom ended up on social media. Australian


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law allows an employer to fire an employee for conduct outside the workplace that may constitute “a breach of an employee’s duty as an employee or a breach of an express term in the employment contract.” Many sporting contracts account for a player’s private conduct but absent such agreement, conduct can breach a player’s duty as an employee but the conduct must have a “sufficient connection to the player’s employment”; meaning did it question the employee’s ability to perform their duties or did it have the ability to taint the employer’s reputation or management. Carney breached this duty by failing to be a role model to his fans. The 2009 National Rugby League Players’ Contract imposes an obligation on players to act in the Club’s best interest and refrain from any misconduct. Judith Miller Kirk Simmons, Terminating a Sportsperson’s Contract for Private Conduct: The Todd Carney Case, (Lawinsport.com 7/15/14). [http://www.jdsupra.com/legalnews/terminating-a-sportspersons-contract-fo-18437/]

And in a case with both implications in sports law and possible harassment, the Department

of Education is investigating Florida State for Title IX policy issues relating to Jameis Winston. Title IX requires conduct hearings for a current student of the school who has a sexual assault claim against him. Winston’s attorney, David Cornwell, took to Twitter to post the accuser’s name for the public to see in retaliation for the accuser’s attorney disclosing Winston’s name to the public. John Talty, Jameis Winston’s Attorney Says He Tweeted Accuser’s Name On Purpose, AL.com (11/5/14), [http://www.al.com/sports/index.ssf/2014/11/jameis_winstons_attorney_says_1.html].

And in a sports law case with much boader implications for ESI, in United States v. Comprehensive Drug Testing, Inc., (621 F3d 1162 [9th Cir. 2010]) the court dealt with issuing and administering search warrants and subpoenas for electronically stored data (“ESI”). In 2002, the Major League Baseball Players Association (“MLBPA”) conducted drug tests on its players to determine if more than five percent of the players tested positive for steroid abuse. If the results were conclusive, the MLBPA would require increased testing for future seasons. All test results were to be kept confidential and out of the public eye. Comprehensive Drug Testing, Inc. (“CDT”) administered the program and maintained the list of players and their respective results. Quest Diagnostics performed the tests and retained the urine samples. When the federal government found out about ten players that tested positive, they secured a grand jury subpoena seeking all drug testing records and specimens in CDT’s possession. The government also obtained a warrant to search CDT’s facilities as well as Quest’s urine samples. CDT moved for the return of their seized property from two different judges (Cooper and Mahan) and a quashing of the subpoena from Judge Illston. Three rulings were rendered with Judge Mahan’s and Judge Illston’s orders being reversed in favor of the plaintiffs while the Cooper order was sustained against the government for their untimely appeal.

Judge Cooper found the government failed to abide by the specific conditions of the warrant. The government was required to segregate information it had probable cause to collect from additional irrelevant data on the test results of other baseball players. Furthermore, Judge Cooper concluded that the government’s actions demonstrated a callous disregard for the


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plaintiff’s rights as well as the baseball players whose personal and professional reputations were at risk. Originally, the government submitted an affidavit before the magistrate judge detailing why a broad seizure of ESI was necessary. The affidavit explained the hazards of retrieving ESI such as disguised computer files, data that was previously erased or disarming booby traps designed to destroy data. Persuaded, the magistrate judge granted broad authority for the seizure of the data but placed two restrictions on the warrant. First, the government had to examine and determine whether the information on the ten baseball players could be searched on-site at CDT in a reasonable time and fashion. Secondly, the ESI data collected could not go beyond the scope of the warrant and had to be reviewed only by law enforcement personnel trained in the search and seizure of computer data. Once screened by the ESI personnel, the government had to return any irrelevant data back to CDT. However, the government completely ignored the requirement to have computer personnel screen and segregate the data and instead seized the test results of hundreds of baseball players. For failing to abide by the warrant, Judge Cooper ordered the return of CDT’s property and due to the government’s untimely appeal, they are bound by the judge’s legal ruling.

Like Judge Cooper, Judge Mahan determined that “the government callously disregarded the affected players’ constitutional rights.” (Id. at 1170.) The government failed to segregate the records of the ten steroid-positive players from the rest of the baseball league and send back the irrelevant data to CDT. Further, Judge Mahan referred to United States v. Tamura, (694 F.2d 591 [9th Cir. 1982]) to illustrate the government’s failure to abide by a warrant’s safeguards. In Tamura, the government was authorized to seize evidence of certain payments received by Tamura. However, upon the realization that examining computer printouts would take too long on-site, the government seized several boxes and drawers of files to be sorted off-site at their offices. Disapproving of the government’s tactics, the court ruled for the return of the irrelevant documents to Tamura and stated that large scale document removal should only be undertaken if “on-site sorting is infeasible and no other practical alternative exists.” (Id. at 596.) With the government taking a substantial amount of CDT’s files without certifying that it contains booby-traps or erased files, the government essentially granted itself the power to decide how much to actually take, making a mockery of Tamura. Furthermore, the government also failed to comply with another important procedure noted in the warrant; having a computer personnel worker conduct a search and segregation of the initial data recovered. Instead, the case agent took it upon himself to search through information pertaining to all baseball players, using that information to obtain additional warrants and subpoenas. The court found that it was “wholly unnecessary for the case agent to view any data for which the government did not already have probable cause” and that there was no basis to retain the test results of any baseball player except those specified in the warrant. Comprehensive, (621 F3d at 1171). The judgement in the Mahan Order was affirmed.


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In his concurring opinion, Chief Judge Kozinski noted five key points to be used as guidance in dealing with searches of ESI in the future so that searches and seizures are conducted lawfully. (Id. at 1178). They are summed up as follows:

1. Magistrate judges should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.

2. Segregation and redaction of electronic data must be done either by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, the government must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora.

4. The government's search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.

5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. (Id. at 1180).

Deflategate. On January 18, 2015, the Indianapolis Colts and the New England Patriots played the AFC Championship at Gillette Stadium in Foxboro, Massachusetts. A question of whether the footballs being used by the Patriots were inflated to levels consistent with the NFL’s Official Playing Rules arose during the game. The NFL conducted an investigation and retained a team led by Ted Wells of Paul, Weiss, Rifkind, Wharton & Garrison to conduct an independent inquiry. On May 6, 2015, the results of the investigation were released and the 139-page report was dubbed the “Wells Report.” After reviewing the report, the commissioner of the NFL, Roger Goddell, on May 11, 2015 issued penalties upon the New England Patriots which included a fine, loss of draft choices and the suspension of New England quarterback Tom Brady without pay for the first four games of the 2015 season. Through the NFL Players Association, Brady filed an appeal of his suspension. On June 23, 2015, a hearing was held in NYC, where Brady testified. The issues presented on appeal were: 1) was the decreased air pressure in the footballs the result of tampering or natural environmental factors? 2) what role, if any, did Brady have in the scheme to tamper with the footballs? 3) did Brady refuse to cooperate with the investigation? Ultimately, it was decided, after 10 hours of testimony and 300 exhibits, that Brady did in fact tamper with the footballs and the discipline against him was upheld, namely, the four-game suspension. The case turned on the fact that on the day that Brady was interviewed by Ted Wells and his investigation team, he ordered an assistant to destroy the phone for him. The investigators had requested the information for weeks prior to Brady’s March 6, 2015 interview with Wells. The NFL commissioner notes that the “four-game suspension imposed on Mr. Brady is fully consistent with, if not more lenient than, the discipline ordinarily imposed for the most comparable effort by a player to secure an improper competitive advantage and (by using a masking agent) to cover up the underlying violation.” See, Ken Belson, N.F.L Upholds Tom Brady’s Ban; Cellphone’s Fate


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Helped Make the Call, (NYTimes 7/28/15). [http://www.nytimes.com/2015/07/29/sports/football/tom-bradys-four-game-

suspension-is-upheld.html?_r=0] Roger Goddell, Final Decision on Article 46 Appeal of Tom Brady, (NFL 7/28/15)

[http://www.nytimes.com/2015/07/29/sports/football/tom-bradys-four-game-suspension-is-upheld.html?_r=0] See also Chapter 11 – Spoliation.

Jurisdiction

Can a company’s or person’s social media presence end up resulting in “long-arm” jurisdiction claims? Answer: Maybe.

See, Carla Walworth and Mor Wetzler, When Companies 'Friend,' 'Like' 'Tweet' Their

Way to Distant Courts, NYLJ 10/11/2012

Privacy Concerns

Is there privacy left in the digital age. Is it even an issue of Big Brother watching, or are we so busy watching each other that Big Brother only has to monitor the feeds? Do we care that our privacy is dissipating? Or is more important to be famous, even if it’s only among our friends? See, Nick Bilton, Disruptions: Seeking Privacy in a Networked Age, (NY Times Bits 10/14/12) [http://bits.blogs.nytimes.com/2012/10/14/seeking-privacy-in-a-networked-age/]

The advancement of technology brings concerns of privacy issues. Data breaches, especially in the healthcare and retailer sectors, increased into 2014. Although forty-seven states have laws relating to security breach notifications, California has recently increased regulation in response to the expansion of security breach threats. California’s amended law expands the definition of personal information requiring individual notification to include a username or email address in combination with a password or security question. If a breach occurs, a company will notify directing people to change their passwords/security questions and inform them to take other precautions necessary to protect any other accounts where they may have used the same login information.

Mobile phone users are also concerned with privacy issues and in response, the mobile app industry proposed ‘codes of conduct’, a guideline of best practices for devices that track user content. State legislatures have also been active in demanding privacy; California passed an amendment to the state’s Online Privacy Protection Act requiring websites/data brokers to clearly indicate whether they honor browser Do-Not-Track requests.


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Class actions under the Telephone Consumer Protection Act also are increasing due to “robocalls” and “Do Not Call” violations. Robocalls, faxes or calls to cellphones/residences and texts using pre-recorded messages and automated dialing systems, are not permitted without express written agreement from recipients. Violations of robocalls can result in settlements as high as $32 million. Individuals listed on the “Do Not Call” registry who still receive solicitations can seek damages under the Telephone Consumer Protection Act.

And in the next great area of e-discovery – “Talking car” technology has recently been the subject of controversy. The system under discussion is known as “V2V” and it provides safety warnings to drivers. Each car would be equipped with a radio beacon that signals to other cars their location and whether another car in the vicinity is speeding or if traffic is slowing up ahead. However, a number of legal issues have slowed down the National Highway Traffic Safety Administration’s (“NHTSA”) proposal to require all new vehicles equipped with the technology by 2019. These issues include concerns over liability, privacy, cybersecurity and government overreach. In regards to liability, if the technology fails to warn a driver about an oncoming car and an accident occurs, who is to blame: the driver who caused the crash or the technology? The NHTSA reported it will have to work with the Department of Transportation to have legislation passed by Congress that offers a liability cap, statutory immunity or contractual indemnifications. Privacy is another major concern. The Electronic Privacy Information Center (“EPIC”) stated that V2V technology allows vehicles to gather and share digital information between businesses and other people. This would create a risk of private information falling into the hands of third parties or law enforcement. The NHTSA highlighted in its reports that the V2V system is not designed to collect or store any information on individuals or their vehicles, nor can the government gather vital information from the system. The Federal Trade Commission commented that V2V only collects enough information to serve its intended safety purposes. The American Trucking Association also outlined its concerns over the possibility of a cybersecurity breach by a hacker on vehicles carrying munitions or explosives. The NHTSA argued that unless the government mandates that every car have this technology, no manufacturer would be incentivized to build vehicles that can communicate with each other if there are no other vehicles to communicate with, leading to market failure. Former NHTSA leader, David Strickland, acknowledged there are a lot of unanswered questions but feels that V2V technology is “worth the investment of time and risk.” Jenna Greene, Car Talk: Sharp Turns Ahead, [http://www.nationallawjournal.com/printerfriendly/id=1202677551065]

(12/01/14)


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The Department of Health and Human Services (HHS) modified the Health Insurance Portability and Accountability Act (HIPAA) to allow more entities with access to protected health information (PHI) to be considered “Business Associates.” Such entities are required to comply with HIPAA’s security provisions/other requirements and failure to do so can result in liability. HHS also altered the trigger for breach notification; an improper use or disclosure of PHI requires notification, regardless of the risk of harm. HHS is increasing its enforcement of security breaches, educating entities of the HIPPA requirements and overall policing violations. Jeffrey L. Poston, Robin B Campbell & Elliot Golding, Privacy, DATA LAW TRENDS & DEVELOPMENTS: E-DISCOVERY, PRIVACY, CYBERSECURITY & INFORMATION GOVERNANCE (June 2014

An Ohio middle school teacher was placed on unpaid administrative leave after a photo of

some of her students surfaced online with duct tape across their mouths and a caption that said "Finally found a way to get them to be quiet!!” This is the first disciplinary case the Akron board of education has dealt with involving social media. Of concern in this case is whether the students' privacy has been violated. The teacher has stated that the students in the photo put the duct tape on their mouths as a joke. However, this photo may cost the teacher her job at a disciplinary hearing which has yet to be scheduled. (See, Ohio Teacher Facing Firing After Posting Facebook Photo of Students Wearing Duct Tape, ABC News [1/22/13]). [http://abcnews.go.com/US/ohio-teacher-fighting-job-posting-duct-tape-photo/story?id=18283887]

Students got expelled after sharing upskirt images of their teacher with classmates. Biology teacher Kimberly Bohnert says she may never get over the shocking invasion of her privacy and has filed a lawsuit alleging a hostile environment and failure to prevent harassment and infliction of emotional distress. Six students were expelled and suspended six more. Six of the students were referred to the juvenile probation department for possible prosecution. Bohnert said the students had distracted her by asking her questions in order to allow their accomplices to sneak a snapshot or take a video with their phones. The school learned that these students had been taking these photos as a part of a game which had been going on for over a year. The school said it has begun to educate students about sexual harassment, gender respect, and technology. Jodi Hernandez, Bay Area Students Expelled over Upskirt Video of Their Teacher, (NBC New York, 05/16/2014). [http://www.nbcbayarea.com/news/local/Bay-Area-Students-Expelled-Over-Upskirt-Video-of-Their-Teacher-259445401.html]

New technology such as Google Glass opens up new privacy concerns with regard to taking pictures or, recording video without consent or knowledge of the second party and Bluetooth connection between Glass and user’s smartphone that would allow the possibility of real-time facial recognition. In response to these concerns Google already has limited the user’s ability to take pictures to cases in which the user either speaks an audible command or makes a visible swipe on the device’s tactile sensor, and limits video recordings to 10 seconds in length without a user holding onto the tactile sensor. Google


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also announced on June 3, 3013 that it would not allow applications with facial recognition on Google glasses. However, all these safety applications could be bypassed by hackers. There are also other interesting hypothetical scenarios such as what if the user wore the glasses while committing a crime? Or used the glasses to photograph sensitive document containing trade secrets? It is still unclear how this new technology would affect the current privacy laws. See Gabriel Meister, Peering Into the Future: Google Glass and the Law, (JD Supra Law News 9/9/13). [http://www.jdsupra.com/legalnews/peering-into-the-future-google-glass-an-38732/]

Google Glass has not seen wide use, yet it is already being banned in some places. In order to address piracy concerns, theater company Alama Drafthouse has instituted a policy banning the wearing of Google Glass during movie showings. Dana Wollman, Theater Chain Bans Google Glass In A Bid To Cut Down On Piracy (Engadget 6/10/14). [http://www.engadget.com/2014/06/10/theater-chain-bans-google-glass-in-a-bid-to-cut-down-on-piracy/]

A Canadian court ordered Google to pay a woman $2,250 for publishing a Street View image which showed her cleavage because of her low-cut top. The woman’s face was blurred out but she was still identifiable by her parked car in the driveway with her license plate number exposed. The Court concluded that the woman’s privacy was violated as well as her “modesty and dignity”. Sophia Curtis, Google fined over Street View image of woman’s cleavage, Telegraph.co.uk (10/31/14) [http://www.telegraph.co.uk/technology/google/11201918/Google-fined-over-Street-View-image-of-womans-cleavage.html].

LinkedIn. A class action lawsuit was filed against LinkedIn alleging that the company used a user’s personal information for a “commercial purpose without consent,” which violated the user agreement, federal, and state law. The suit further claimed that LinkedIn was able to download email addresses from users email account and send emails to people in their address books soliciting memberships by claiming that the email address account owner (user) sent the emails requesting the membership. LinkedIn responded to the complaint by stating that they did not access email accounts without permission, deceive users or send messages to anyone inviting them to join the website on a user’s behalf. However, the Terms of Service and Privacy Policy both outline almost unlimited and irrevocable authority to collect personal information in any way it so chooses, which would likely protect the company from liability. LinkedIn will likely file a motion to dismiss to suit. See, Peter S. Vogel, Is LinkedIn Being Sued for Doing Just What It Says It Will Do?, (Ecommercetimes.com 11/8/15). [http://www.ecommercetimes.com/story/79383.html] A federal judge allowed the case to continue on a right to publicity claim. Jonathan Stempel, LinkedIn must face customer lawsuit over email addresses (Reuters, 6/13/14) [http://www.reuters.com/article/2014/06/13/linkedin-lawsuit-idUSL2N0OU0LB20140613]; Perkins v. LinkedIn Corporation, 2014 US DIST LEXIS 81042 (ND Cal Jun 12 2014).

A patient at a Cincinnati medical center who was diagnosed with syphilis found her medical records posted on a Facebook page entitled “Team No Hoes.” The subsequent lawsuit revealed that her ex-boyfriend persuaded an employee of the hospital with whom he was


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romantically involved and another individual, to take the screen shot of her medical record. The ex then posted it to the Facebook page. The lawsuit names the hospital, the ex-boyfriend as well as the two employees who took the screen shot. Nina Golgowski, Ohio woman suing hospital for allegedly posting STD diagnosis on Facebook (NY Daily News, 6/4/14). [http://www.nydailynews.com/news/national/std-victim-suing-diagnosis-shared-facebook-article-1.1817391]

A Minnesota school district paid a teenage student $70,000 after bringing the student into the office in front of school administrators and police officers and pressuring her to give up her Facebook password. The incident arose when the teen posted a comment about her dislike of a teacher’s aide, then a little after that a parent complained when she found an illicit Facebook conversation between the teen and her son. Soon after, the student was brought into the office, pressured into giving up her password, and then stood by as school officials perused her private messages. The Superintendent tried to justify the actions by saying they were trying to get a hold of the situation before things got out of hand, but some believe the school greatly overstepped its boundaries. Carol Kuruvilla, Schools pay $70,000 to Minnesota Student Forced to give up Facebook Password, (Daily News, 03/27/2014). [http://www.nydailynews.com/news/national/school-pays-70-000-

forcing-student-reveal-facebook-password-article-1.1736528]

Canadian woman Lavinia Latham filed a class action suit against Facebook for committing privacy offenses by mining personal information contained in messages in order to boost advertising revenue. It was discovered that every time a person sent an external URL link via private message in Facebook, the owner of that URL received 2 ‘likes’ on its Facebook page. John Browning, Get That Thing Out of My Face(book)!- Canadian Woman Brings Class Action Against Facebook in Ontario for Private Message Scanning (JD Supra, 5/6/2014). [http://www.jdsupra.com/legalnews/get-that-thing-out-of-my-facebook-c-96199/]

People who utilize social media are likely providing personal information to social media sites. 47 States, the District of Columbia, Guam, Puerto Rico and the Virgin Islands have all enacted statues which require those sites to notify the user of security breaches of personally identifiable information. California has gone one step further and required sites to notify the user of disclosures of user names and email addresses. See, John Rosenthal and Adam Nadelhaft, How to Navigate Social Media Hazards [cite supra].

In New York – Security breaches are governed by: NY Gen Bus Law § 899-aa and NY State Tech Law 208

Our Neighbors to the North. The Supreme Court of Canada ruled that in order for a citizen to maintain his right to privacy on the internet, he must maintain the ability to remain anonymous. The Court further rules that short of a showing of probable cause of law enforcement, internet service providers and the like should not be compelled to reveal identifying information


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about users. Terrence O’Brien, Canadian Supreme Court rules internet anonymity is key to privacy, (Engadget 6/13/14) [http://www.engadget.com/2014/06/13/canadian-supreme-court-anonymity-is-a-right/].

Bloggers & First Amendment Rights

Plaintiffs alleged that defendant, Chinese based search engine Baidu, conspired to prevent “pro-democracy political speech” from appearing in its results here in the United States. The allegation specified that the search engine censored any information regarding the Democracy movement in China or any topics that related to the Chinese Democracy Movement, all at the behest of the People’s Republic of China. The issue of the case was whether search-engine results are protected as free speech under the First Amendment. The court found that the First Amendment jurisprudence compelled the Plaintiffs case to be dismissed. The court was directed to this conclusion through several precedents. First, the courts have held that the Government cannot interfere with the editorial judgments of private speakers on issues of public concern. Second, the aforementioned rule is not restricted to the press, but also applies to corporations and ordinary people, and professional publishers. Third, the First Amendment protections apply whether or not a speaker articulates a precise message, or whether or not the speaker generated the underlying content in the first place. And finally, it does not matter if the government’s intentions are noble, meaning no matter how justified disapproval may be, the government cannot legitimately compel the speaker to alter the message. A search engine’s act of compiling other’s materials and selectively organizing them to prioritize order of appearance or omit content is fully protected by the First Amendment. Baidu has a Constitutional right to selectively edit what content appears in their search results, and consequently the Government cannot use its power to compel Baidu to act otherwise by forcing them to include certain materials in their results. Zhang v Baidu.com Inc., 2014 WL 1282730 (USDC SDNY Mar 28 2014).

Plaintiff is the owner of two internet websites which main purposes are exposing corrupt politicians in North Carolina, and exposing the atrocities committed by the Chinese government. The plaintiff alleged that the defendant violated his First Amendment right by refusing to run ads for his websites. Plaintiff alleged that Google disapproved his ads on the basis of unacceptable content, and that Google’s content policy is based on fraud, deceit, and misrepresentations regarding its advertising policies and search engine results. The complaint alleged that acceptance or rejection is based on whether the content is aligned with the political viewpoints of Google. Other allegations include, that google removed his site from their search results, and that Google censored his website. The court ruled that the government cannot compel a speaker to include content that it does not wish to include. Similarly, the court noted that Google has the right to screen advertisements and refuse those which it deems to be lewd, and that in this capacity Google is acting in a manner that is “quintessentially related to a publisher’s role.” For those reasons, the


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court granted the defendant’s motion to dismiss. Langdon v Google, Inc., 474 FSupp2d 622 [USDC Del Feb 20 2007].

The Court of Justice of the European Union ruled that Google must listen to and sometimes comply with individual’s requests to have links to materials that contain their private information to be removed from the search results. This ruling supports individual privacy rights over the freedom of information. Google must accept and then duly examine the merits of any and all requests to remove content containing a person’s private information, but it is not clear how Google and other search engines are supposed to deal with such complaints. This is a part of the ongoing debate about the right to be forgotten and to have negative information erased after a certain period of time. Associated Press, Google Must Respect Individual’s Privacy in Searches, European Court Rules, (Daily News 05/13/2014) [http://www.nydailynews.com/news/world/google-respect-individual-privacy-ruling-article-

1.1790178]; See also Richard Raysman & Peter Brown, Are Search Engine Results Protected Speech? (NYLJ 05/13/2014); Shari Claire Lewis, First Amendment Protects Search Engine Results (NYLJ 04/15/2014)

Commercial Liability & Concerns

Most companies are active on social media such as Facebook and Twitter. In order to generate content, companies will often retweet or tweet links to third party content along with a discussion of their own products as they relate to the links. However, little attention is paid the

potential liability that may arise from this practice. Corporations would be wise to be sure that they are not committing copyright infringement by tweeting an offending link.

Top ten ways to steer clear of liability when linking to third-party content:

1. Use your own words when describing third-party content in the Tweet or link, to avoid direct infringement.

2. Only link to genuine content; do not link to infringing material (i.e. unauthorized copies of the content on infringing sites).

3. Do not link to streaming content/live performances. 4. Only link to publicly available content (i.e. do not allow users to bypass a registration

process or paid subscriptions, etc.). 5. Do not use language in the tweet that would imply false sponsorship or association (i.e.

do not tweet “The New York Times just posted an article that endorses [your company's product]” if the article really only discussed products of that type in general).

6. Do not include service marks (other than trade names) as the text of the link. 7. Link to genuine content on the authorized website, rather than calling up a cached site or

mirroring the content on your own company’s website. 8. Do not use frames or in-line links.


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9. If you receive a cease and desist letter for posting a link, remove the link. 10. Review the terms of the linked site to determine if they prohibit or restrict linking.

See, Beth Seals, Read This Before You Tweet That Link! (Global Business IP and

Technology Blog, 3/20/14) [http://www.iptechblog.com/2014/03/read-this-before-you-tweet-that-link/]

Similarly, companies should be cautious when tweeting about celebrities without permission. Even if a celebrity is photographed using or wearing a company’s brand, tweeting a picture of it risks violating that celebrity’s right of publicity. It could also give rise to a claim of false endorsement under the Lanham Act. One high profile example includes Katherine Heigl’s suit against Duane Reade for tweeting a photo of her leaving a Duane Reade store without her permission. The tweet featured a photo of Ms. Heigl coming out of the store while holding two Duane Reade bags along with the words: “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” Beth Seals, Celebrity Tweets Can Cost You Millions, (Lexology, 6/2/14) [http://www.lexology.com/library/detail.aspx?g=6b07fee7-a280-4e16-a9a6-430f6d34e111]

See also, Chapter 7- Miscellaneous Legal Issues (Insurance & Cyber Security)

Cyber-Currency (Virtual Currency)

The New York Department of Financial Services issued a first of its kind proposed rule for public comment, setting forth a regulatory scheme for businesses that transact in BitCoin. The proposed rule would require any such company to obtain a license to do so.

Specifically, the license would cover virtual transactions that involve the State of New York or a New York State resident in which a person:

Receives or transmits virtual currencies on behalf of consumers; Secures, stores, or maintains custody or control of virtual currency on behalf of

consumers; Performs retail conversion services, including converting or exchanging virtual

currency for fiat currency or other virtual currency; Buys or sells virtual currency as a business; or Controls, administers, or issues virtual currency.

Licensees would be subject to the following requirements:

Capital requirements, as determined (but not yet disclosed) by the superintendent;

Restrictions on investments of retained earnings and profits;

Prior approval before material changes are made to an existing product or service;


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Extensive recordkeeping requirements, subject to a 10-year retention period;

Regular (i.e., at least every two years) examinations by the NYDFS; and

Requirements for quarterly reports on financial condition and annual audited financial statements.

Develop an anti-money laundering compliance program that meets accountholder verification and reporting requirements;

Develop a cyber-security program that includes regular penetration testing;

Designate a chief information security officer;

Designate a compliance officer; and

Develop business continuity and disaster recovery plans.

New York DFS proposes sweeping virtual currency licensing scheme, (Lexology, July 18, 2014) [http://www.lexology.com/library/detail.aspx?g=fecbbd09-f2fa-487b-91f1-d5b7592914a4]

Consumer Protection As Facebook or Pinterest pages supplement or take the place of the web pages, which became a larger and larger part of corporate and consumer advertising in the last decade, regulations need to adopt and change to keep up with the times. Regulatory proceedings often involve e-discovery and although some of the elements of preservation, collection, review and production are similar in the regulatory field as in other fields, regulatory proceedings are different in terms of timing and asymmetrical bargaining. Since the parties want the transaction to quickly conclude, document productions in regulatory proceedings are very fast paced, despite the fact that the typical government subpoena is broad and has a tendency to request all documents relating to multiple topics. The manner of producing ESI in regulatory proceedings are often scrutinized, especially since there is a lack of judicial oversight. To remedy this problem, the parties should cooperate with the government at an early stage in the proceeding. Agencies are requesting more information about the documentation process in regulatory proceedings. In order to efficiently undertake discovery production in regulatory proceedings, parties should employ certain strategies that best suits their cases by adopting well-documented processes early on. Michael G. Van Arsdall & Margaret Nielson, Regulatory, DATA

LAW TRENDS & DEVELOPMENTS: E-DISCOVERY, PRIVACY, CYBERSECURITY & INFORMATION

GOVERNANCE (June 2014).

The FDA issued a warning letter to AMARC Enterprises implying that the company's act of "liking" comments or posts on Facebook as akin to adopting or endorsing the claim itself. The FDA did not explain how "liking" a user's comment constituted drug promotion, but it appears that "liking" a third-party's comment creates an implied disease claim. The FDA has not stated how or if this policy will extend to other social media website, and is likely in the process of shaping its


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enforcement policies regarding social media use. See, Food & Drugs. Alonza E. Cruse, Warning Letter, (FDA.gov 2/21/13) [http://www.fda.gov/iceci/enforcementactions/warningletters/2012/ucm340266]; See also, Fuerst Ittleman David & Joseph, PL, FDA Issues Two Warning Letters for Social Media Use: FDA Does Not Approve of "Liking" Consumer Claims and Targets Website Search Results, (JDsupra.com 4/29/13) [http://www.jdsupra.com/legalnews/fda- issues-two-warning-letters-for-socia-21921/]

Late in 2013, the FDA released a guidance for developers of mobile medical apps, or apps that operate on mobile devices but perform the same functions as traditional medical devices. The FDA is seeking to “focus its regulatory oversight on a subset of mobile medical apps that present a greater risk to patients if they do not work as intended.” The FDA states that it will use the same regulatory standards it uses to evaluate traditional medical devices because mobile medical apps, if operate incorrectly, could have serious consequences for the user. The FDA is seeking to mitigate that risk by implementing this guidance and implementing regulations on developers. See, Brian Torres, Can the FDA Regulate Your Smartphone Apps? (Mobilemedialawjournal.com 11/5/13). [http://www.mobilemedialawjournal.com/2013/11/can-the-fda-regulate-your-smartphone-apps/]

Pharmaceutical company IBSA Institut received a warning from the FDA for a post on their Facebook page that claimed the drug Tirosint can be used the combat hypothyroidism, because the post was false and misleading for making claims about the efficacy of the drug but failed to list any potential risk information. The FDA has recently issued a guide for the use of social media and prescription drugs, noting that the companies are not accountable for unaffiliated third party posts but are responsible for general content generated by an employee or agent of that company. Marlisse Silver Sweeney, FDA Cautions Big Pharma for Failure to Warn on Facebook, (Law Technology News, 03/18/2014) [http://www.lawtechnologynews.com/id=1395140819871/FDA-Cautions-Big-Pharma-

for-Failure-to-Warn-on-Facebook?slreturn=20140628100158]

The Federal Trade Commission is cracking down on health apps that collect data on users and then transmits it to a third party company for advertisement purposes. The United States aggressively protects health data with HIPPA, but there are no rules that regulate the health data that is being transmitted by these health apps. Mark Sullivan, FTC May Soon turn its Regulatory Gaze Towards Data-collecting Health Apps, (VentureBeat, 05/16/2014). [http://venturebeat.com/2014/05/16/ftc-may-soon-turn-its-regulatory-gaze-toward-data-collecting-health-apps/]

Alcoholic Beverages. Guidelines issued for use of Social Media in the advertisement of

alcoholic beverages. See, Dept. of the Treasury, Use of Social Media in the Advertising of Alcohol Beverages, Industry Circular No. 2013-1 (5/13/13). [http://www.ttb.gov/industry_circulars/archives/2013/13-01.html] (See also, Carey Greene, New Guidance Issued on Social Media Use for Alcohol Beverage Companies, (JDsupra.com, 5/21/13), [http://www.jdsupra.com/legalnews/new-guidance-issued-on-social-media-use-52266/]

A New Jersey district court judge ruled the Federal Trade Commission (FTC) can bring

actions against companies for a failure to maintain reasonable and appropriate data security for customers’ personal information under the FTAC Act. The FTC Act promulgated a three part


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test to determine whether security was reasonable and appropriate, looking at complaints, consent agreements, and public statements. Sherry Karabin, New Reason to Guard Against Data Breaches: FTC (Law Technology News, 05/06/2014) [http://www.lawtechnologynews.com/id=1202654096721/New-Reason-to-

Guard-Against-Data-Breaches-FTC]

The FDA has stated that a firm is not responsible for user generated content (UGC) that is

truly independent of the firm. However, pharmaceutical and medical companies should still be wary of. For example, a Tweet directed at a firm that a consumer nearly died from using its product needs to be investigated and reported to the FDA. Further, even if UGC is truly independent of a firm, if the firm takes measures such as liking the UCG, it thereby adopts the UCG as its own. See, John Rosenthal and Adam Nadelhaft, How to Navigate Social Media Hazards [cite supra].

Can Liking a brand Void Your Right to Sue? General Mills has added language to their websites that informs customers that if they download coupons for their products, then they are giving up their right to sue the company. Anyone who has received anything that can be construed as a benefit must bring any disputes they have with the company must resort to informal negotiations or arbitration, but cannot seek relief in court. This makes General Mills one of the first food companies to impose “forced arbitration” on consumers. This policy change follows in the wake of AT&T Mobility v. Concepcion, which decided that businesses can bar class action law suits with the use of a standard contract requiring that disputes be handled through one-on-one arbitration. Some have noted that there is a big difference between other companies and food companies in that food companies create products that are ingested and can be potentially lethal to a person with food allergies. Scott Nelson of the nonprofit advocacy group, Public Citizen, also argued that there is a big difference in the benefit a person receives from downloading a coupon versus the rights they are giving up. Arbitration experts said courts will probably require General Mills to prove that the customer was aware of the new policy before they issue any rulings that deny legal action against the company. Stephanie Strom, When ‘Liking’ a Brand Online Voids the Right to Sue, (New York Times 04/16/2014) [http://www.nytimes.com/2014/04/17/business/when-liking-a-brand-online-

voids-the-right-to-sue.html?_r=0]

Moreover, recent New York court decisions have analyzed the process by which internet users entered into agreements with web providers, specifically the enforceability of Terms of Service (“TOS”) involved in the transactions. In Starke v. Gilt Groupe, (No. 13 CIV. 5497 (LLS) [SDNY April 24, 2014]), the court explained a binding contract is made when there is a “manifestation of mutual assent” and that sometimes a party has constructive instead of actual knowledge of a TOS agreement that is acceptable to infer recognition. Gilt Groupe made their “Terms of Membership” very obvious to Starke because they included a hyperlink to their TOS right next to the website’s sign-in box, which was only a single mouse-click away. The court found Starke did have constructive knowledge of the TOS because he was aware that there were


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terms involved in his purchase even though he did not see or read them. Similarly, in 5381 Partners v. Sharesale.com, (No. 12-CV-4263 (JFB) (AKT) [EDNY September 23, 2013]), the court enforced the defendant’s TOS because for a party to become a merchant with the defendant’s website they would have to agree with the website’s “Merchant Agreement,” establishing constructive notice. The plaintiff had to check a box as part of the sign up process signifying their consent to the Merchant Agreement. There was even a statement on the website that warned users to read the Privacy Policy and Terms of Agreement, with a hyperlink included in the notice.

Where a court will not hold a TOS to be enforceable resides in the decision of Okeke v. Cars.com¸ (40 Misc 3d 582 [Civ. Ct. Queens Co. 2013]). The plaintiff bought a car from a seller through the defendant’s website. Money was transferred to the seller but the plaintiff never received his purchased car or heard from the seller again. The court denied the defendant’s motion to dismiss because the TOS agreement was listed in a hyperlink at the bottom of the Cars.com website and merely placing the TOS on the website, without further instruction, was not enough to show the plaintiff agreed to be bound by its terms. In New York, courts look to see whether a plaintiff possessed actual or constructive knowledge of a TOS and has agreed to be bound by it, regardless of whether the terms were seen or read. Shari Claire Lewis, Website Terms of Use: Recent New York Rulings, (NYLJ 6/17/2014).

Financial Institutions Financial institutions are highly regulated and highly scrutinized institutions that obtain huge amounts of sensitive and valuable information as a consequence of their regular course of business. As technology advanced and electronic communications became more commonplace, financial institutions were subject to fines, sanctions, and causes of new legislation. As a result, the financial services industry invested in retaining almost all electronic data. This collection of sensitive and privileged data is difficult to manage and a major challenge for the industry is ensuring that the constant litigation doesn’t actually disrupt or materially change their ordinary course of business. Another challenge is managing the information and producing it to relevant parties in litigations and investigations within the guidelines of e-discovery rules and regulations.

Generally, e-discovery is treated as an isolated process that is left to outside counsel to

grapple with instead as part of a business process. However, because the financial services industry is so regulated, retains so much information, and uses that information to continue its business, e-discovery should not be left only to outside parties to manage and complete. Instead, e-discovery should be managed and planned for by the institutions because they have greater understanding on how the e-discovery process will affect their day-to-day operations and only consult outside counsel when appropriate.

Managing large quantities of data in litigation is costly as it can cause delays and risks to the

institution. Technological advents are not enough to manage the ever-growing data, so companies should seek creative lawyering and quantify the impact of e-discovery as part of daily business


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operations. Outside counsel can advocate for cost control measures, restrict certain types of data to be searched etc… Additionally, as privacy rights are becoming asserted more aggressively, financial institutions (especially international ones) are having difficulties reconciling privacy laws of the U.S. and outside countries, and/or transferring relevant data from abroad to the U.S. for current litigations. Again, these types of issues need to be addressed as part of the institutions daily business operations and implement consistent policies and procedures for dealing with these complex issues, instead of dealing with them on an individual basis.

On December 10, 2013, the FFIEC issued a guidance (“The Guidance”) regarding the

use of social media by financial institutions. The Guidance applies to all financial institutions governed by any one, some, or all of the six FFIEC members. The Guidance states that it doesn’t impose any new requirements on financial institutions, just applies to conduct (such as monitoring negative comments about the financial institutions on third party websites) previously unregulated by the FFIEC. The Guidance hopes that the financial institutions will adopt skillful risk management programs to manage their use of social media so lessen any risks associated with being active on social media platforms. The risk management program should include strategies on how to mitigate legal issues, build up reputations, and address any customer/client concerns before they translate to poor reviews and negative commentary on the internet. [http://www.fclaw.com/newsletter/materials/FFIEC_social_media_guidance.pdf]

Another e-discovery issue in the financial services sector includes managing and protecting attorney-client privileged and bank examination privileged documents. By implementing policies and procedures to manage documents that fall within one or both of these categories, the institution can be shielded from further litigation resulting in breaching one or both of these privileged documents. Overall, recognizing that e-discovery is an impactful process on the day-to-day business processes of an institution and implementing strategic plans that both the managers and outside counsel implement can expedite the process, ensure all regulations are being followed (whether in the U.S. or abroad), and protect the institution from further litigation resulting from and improper and poorly managed e-discovery process. See, Anthony J. Diana, Therese Craparo, and Patrick Garbe, Meeting the Challenges of E-Discovery for Financial Institutions, (NYLJ 10/7/13)..

Post Settlement

Most lawyers are used to dealing with confidentiality agreements as a condition of settlement in many cases. But the reality of today’s world is that while a party may have been safe to tell a few friends about a settling, today you are one “share” or “forward” or “retweet” away from losing a lot of money.


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The daughter of a former headmaster of a private prep school violated the confidentiality clause of her father’s settlement with the prep school when she posted this Facebook status: “Mama and Pap Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” Elise Solé, Daughter’s Facebook Brag Cost Her Family $80,000 (Yahoo! Shine, 2/28/14) [http://shine.yahoo.com/parenting/-80-000-facebook-dana-snay-settlement-confidentiality-agreement-164326139.html]


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Chapter 6: Family Law Issues

It is truly amazing what people post on their social media pages. One of the areas of law that have been largely influenced by social media is family law. While there has never been a shortage of cheating spouses, Facebook and other sites have certainly aided in the process. That former lover, that old high-school crush, the ease of contact with the what-might-have-been relationship are only a “poke” away. And then as the divorce case goes forward, the people who forget that although they are no longer “friends” with their soon to be X, there are plenty of mutual friends all to ready to share what they learned the other is up to. While social media content that has been made public can be accessed by adverse parties, a court can even order you to turn over login information so that private content be disclosed to an adverse party.

For instance, in Gatto v United Airlines, a personal injury law suit for an on the job injury, the defendant argued and the court agreed that the plaintiff’s Facebook postings may refute his claim of severe disability. Accordingly, the court ordered the plaintiff to change his Facebook password to “allunited”, as to allow the defendant airline access to his Facebook postings. After the Defendant airline attempted to access the Plaintiff’s Facebook page, the Plaintiff received a warning from Facebook regarding unknown access from an IP address in New Jersey. The Plaintiff then deleted his account because he claimed he thought his wife (whom he was divorcing) had been accessing his account without permission. The court held that even if the Plaintiff wasn’t intentionally trying to deprive the defendant of access to the account, his actions were nonetheless intentional. Therefore, an adverse inference was appropriate. Therefore, it is important to be mindful of what is posted on social media, and once posted, don’t delete it. Michele Bowman, Social Media Wins and Loses - Family Law Cases, JD Supra (10/5/12). [http://www.jdsupra.com/legalnews/social-media-wins-and-loses-family-l-48947/]; See also, David Wildstein, Don’t Let Social Media Sabotage your Divorce or Family Law Case, ( JDSupra Law News, 7/23/13). [http://www.jdsupra.com/legalnews/dont-let-social-media-sabotage-your-div-77796/]

A Chicago couple jointly operate a Twitter account which documents every fight they have. The account, We Fought About, tweets when and what the couple fight about in small, somewhat vague inputs. The couple find it to be therapeutic as well as informative because it allows them to identify their own as well as each other’s triggers. Many people report that they find the account to be relatable, and at times comedic with posts that are vague enough to be non-invasive, but with enough detail to provide followers with a few chuckles. Robyn Lawley, This Couple Broadcasts all Their Fights on Twitter, (New York Magazine 11/08/2013) [http://nymag.com/thecut/2013/11/this-couple-

broadcasts-their-fights-on-twitter.html]

According to a Pew Internet Survey, 72 percent of Americans who are “seriously partnered” indicated that the internet has “no real impact at all” on their relationship, but further surveys revealed they just may not be aware of how much the internet actually affects the

msciarri

Draft


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relationship. Other numbers indicated that a large portion of couples communicate and bond through their cellphones, either via text or social media. Some of the other reported impacts include a partner feeling ignored by the other in favor of their phone, having arguments about time spent on the internet, and even resolving spats through in text. So while many people report not seeing an impact at all on their relationship, the truth may be that we have become so accustomed to the role the internet plays in our romantic lives that we no longer register that it does have an impact. Robinson Meyer, All Romantic Relationships are Digital Now, (The Atlantic 02/14/2014) [http://www.theatlantic.com/technology/archive/2014/02/all-romantic-relationships-are-digital-now/283863/]

Pre-nups: Social media is not going anywhere and with that, social media prenuptial agreements are beginning to appear. These pre-nups often govern what images and information couples may share about each other on social media sites. The pre-nup can govern behavior both during and after the relationship has been dissolved. Post-breakup violations may result in monetary fines, while violations during the relationship may involve more lighthearted punishments, like an extra chore for the offending party. Jenna O’Donnell, Legally Binding Social Media 'Prenups' Aim To Quash Embarrassing Facebook Posts (NY Daily News, June 5, 2014)

[http://www.nydailynews.com/life-style/legal-social-media-prenups-quash-embarrassing-posts-article-1.1818229]

In fact, Social Media can even come into play with the service of process in the case. See Chapter 8 – Facebook and the Service of Process.

Divorce

A recent study found that 75% of participants were more likely to get divorced if a friend was divorced and 33% were more likely to get divorced even if a friend of a friend got divorced. Researchers hypothesize that this is a phenomenon known as “social contagion”, whereby attitudes and behaviors can spread between family and friends and even via social networks. Tracee Carrasco, New Study Says Divorce Can Be Contagious [CBS Local 4/30/14] [http://newyork.cbslocal.com/2014/04/30/new-study-says-divorce-can-be-contagious/].

Equitable Distribution

B.M. v D.M. (31 Misc 3d 1211A [Sct Ct Richmond Co, 2007]). In this case Judge DiDomenico held a trial on equitable distribution at a divorce proceeding after an 11 year marriage. The wife claimed she could not work due to health reasons. She was under the care of a doctor and was taking several types of prescription medication: Percocet, Somma (muscle relaxer), Elvail (for seizures and tremors), Xanax, and Ambien (for sleeplessness). According to her husband, she spends several hours per day sitting in front of a home computer participating in internet blogs and boasts in her Facebook blogs that she


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commutes into Manhattan to belly dance several nights per week. At trial, the judge found that she incredibly testified that she stopped belly dancing in 2008, notwithstanding her own Facebook posts which revealed otherwise. Although, the wife was smart in one respect. When asked on her Facebook page, why she did not post online any pictures of herself dancing, she replied: “Gotta be careful what goes on line pookies. The ex would love to fry me with that.” Husband received 60% of the marital estate and counsel fees. Although he did have to pay temporary maintenance for 2 years in the amount of $400/month.

o Gaetano Ferro, Marcus Lawson & Sarah Murray, Electronically Stored Information: What Matrimonial Lawyers and Computer Forensics Need to Know, 23 J AM ACAD MATRIM LAW 1 (2010)

Equitable distribution in the 21st century is no longer limited to the vacation house and car.

During divorce proceedings, digital assets are often overlooked. However, digital items such as websites, domain names, digital media, reward points and data storage accounts should be identified, then valuated and divided just as any tangible property would. Marlisse Silver Sweeney, Digital Divorce: First Your House, Next Your iTunes Library, (Law Technology News, July 30, 2014) [http://www.lawtechnologynews.com/id=1202665304512/Digital-Divorce-

First-Your-House-Next-Your-iTunes-Library?slreturn=20140721150546]

Domestic Violence Issues

Domestic Violence, which is about power and control. Social Media and technology can make it easier, to track, stalk or emotionally abuse one’s partner. Teen-age DV is on the rise, and with it the need to understand how technology can play a role in the abuse.

Visit National Network to End Domestic Violence (NNEDV) at nnedv.org.

NNEDV's Safety Net: National Safe & Strategic Technology Project creates resources to

help victims and agencies respond effectively to the many ways that technology impacts victims of domestic and dating violence, sexual violence and stalking:

o Technology Safety - http://nnedv.org/resources/safetynetdocs.html o Internet Safety: http://www.nnedv.org/internetsafety.html

Joshua Azriel, Social Networking as a Communications Weapon to Harm Victims:

Facebook, Myspace and Twitter Demonstrate a Need to Amend Section 230 of the Communications Decency Act, 28 JOHN MARSHALL J OF COMPUTER AND INFORMATION

LAW 415 (Spring 2009)

Contempt Case. In a case of first impression in New York and perhaps the country, Judge Modica, the Supervising Judge of Queens Criminal Court ruled that an email “signature”


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satisfied the requirements to convert a misdemeanor complaint to an information. The court found that the widespread use of email obviated any need for legislation specifically authorizing e-signatures. In support, the court cited to Forcelli vs. Gelco Corp, 109 AD3d 244 [1st Dept 2013]), discussed in Chapter 9, which held that an email signature could satisfy the criteria for a binding and enforceable stipulation of settlement. Finally the court noted that there was no concern about automatically generated signature as the complainant in this case specifically wrote “I agree” in response to an Assistant District Attorney’s instruction that she could accordingly if the information was true and accurate and she agreed to sign electronically. Andrew Keshner, E-Signature Accepted in Queens Domestic Violence Case (NYLJ, 1/30/15); People v. Sanchez, (47 Misc 3d 612 [Crim Ct, Queens Co, 2015])

Custody

Social media and technology have taken once private conversations between feuding spouses and made them readily available to be used in divorce proceedings. Text messages and phone calls recorded via smartphone app are now increasingly introduced into evidence against the other party. Facebook posts – no matter how private your account settings are – often land one or both spouses in hot water. Communications that were once private are now broadcast and memorialized for future litigation. The lesson: think before you speak… or text… or post… or tweet. Cassie Baudean, The Impact of Social Media and Technology on Divorce and Custody Cases, (Law Technology Today, July 17 2014) [http://www.lawtechnologytoday.org/2014/07/the-impact-of-social-media-

and-technology-on-divorce-and-custody-cases/]

Matter of Jennifer G v Benjamin H. (84 AD 3d 1433 [App Div, 3rd Dept 2011]). The court

affirmed modification of custody order to give mother sole legal custody, although father's visitation time should not have been reduced when father committed the family offense of aggravated harassment by continuing to call the mother names and indicating that she was "going to get hurt" in emails. The emails were sent to the mother’s sister, but the court held that the father knew or should have known that they would be forwarded to the mother.

Matter of Melody M. v. Robert M., (2013 NY Slip Op 959 [App Div, 3rd Dept 2/14/13].) This case began in Family Court when the mother sought to change the visitation schedule and the father sought sole custody. Family court found a sufficient change in circumstances to support the conclusion that the joint custody arrangement was no longer viable and that awarding sole custody to the father would be in the best interests of the children. Family Court also imposed an order of protection against the mother that prohibited her from, among other things, posting any communications to or about the children on any social networking site. Their eldest child suffers from mental health issues and undergoes counseling. The mother did not regularly participate in the child's counseling because she


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disagrees with the therapists. Also, the mother called her eldest son on Facebook an "asshole" because that is what "he is." The Court upheld the Family Court's award of sole custody to the father and the order of protection against the mother. (See also, John Caher, Mom's Facebook Posts Show 'Lack of Insight,' Panel Finds in Granting Father Full Custody, [NYLJ 2/19/13];http://www.newyorklawjournal.com/pubarticlefriendlyny.jsp?id=1202588456641 Ginger Adams Otis, Mean Upstate NY Mom Stands By Calling Her Son an Obscenity of Facebook, Affirming it in Court, Daily News [2/19/13]). [http://www.nydailynews.com/new-york/mom-calls-son-a-e-

facebook-court-article-1.1267518)]

Twittering Child (a “Twit?) R.M. v. D.Z., 2013 IL App (3d) 120846-U [App Ct Ill 3d Distrct Mar 4, 2013] [http://www.state.il.us/court/r23_orders/appellatecourt/2013/3rddistrict/3120846_r23.pdf]. This case was a family law appeal in which the father argued that the parenting plan and custody of his twins should be modified. The mother had custody of the twin children. The father alleged that the mother's 17 year old daughter threatened the twins, consumed alcohol with her mother, and abused drugs. The father sought to use the daughter's twitter posts as evidence of this activity. The 17 year old tweeted: "I'm going fucking insane I hope these little fuckers have school tomorrow or I will probably kill them … my brothers are such ungrateful pricks I hate disrespectful little cretins," "beat kids," "drinking with my mom … now I know why I only drink wine," "drinking Bailey’s with my mama," and "I love drinking with my mom LMFAO." The trial court held that it has become apparent after many of these types of cases that "young people don't put the normal everyday occurrences of life on their Twitter account postings. And trying to rely upon Twitter account postings or Myspace or Facebook as proof of facts, actually things that have happened, just can't be done -- especially with young people." The trial court also found that the mother had no knowledge of the 17 year old's drug use. In this jurisdiction, a child custody modification decision will not be disturbed "unless it is against the manifest weight of the evidence." The appellate court held that there was sufficient evidence in the record to support the trial court's findings. Specifically, the tweets were afforded little to no weight in the proceeding as they were not reliable evidence of actual occurrences. (See also Joey Chindamo, Illinois: Young People's Tweets Aren't Statements of Fact, IT-Lex.org [Mar. 26, 2013] [http://it-

lex.org/illinois-young-peoples-tweets-arent-statements-of-fact/]

Fitzgerald v. Duff, (2013 NJ Super Unpub LEXIS 1376 [Sup Ct of NJ, App Div June 7, 2013]) NJ State Court determined imputed income of defendant in child custody case to be $100,000 after reviewing photos from social media submitted by plaintiff. Defendant originally stated income was only $21,000 according to 2011 tax return. Plaintiff (child’s grandmother) offered social media photos of defendant’s speed boat, 2011 Chevrolet Camero, and defendant’s “elaborate tropical wedding, diamond engagement and wedding bands and [defendant] throwing $100 bills.” Judged ruled that imputation of income of $100,000 was appropriate “based on everything before me.” Defendant challenged finding based on tax returns and requested that judge reconsider case and provide factual basis for level of income imputed. Trial court rejected defendant’s evidence and maintained original finding. Superior Court for Appellate Division reversed order denying reconsideration and


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remanded to trial court to review disputed questions and to ground imputation of income in facts or other evidentiary authorities. (See, Also, Family Law & Social Media ESI, [Bowtielaw.com 6/28/13]). [http://bowtielaw.wordpress.com/2013/06/28/family-law-social-media-esi/]

A Pennsylvania man, who previously served jail time for resisting arrest after pleading guilty to harassment charges, was arrested for disclosing private communications. He secretly recorded a custody conference he attended with his former wife and posted two recordings on his Facebook page. Debra Cassens Weiss, Litigant Is Accused Of Illegally Recording Custody Conference And Posting It On Facebook, (ABA Journal) (9/9/14). [http://www.abajournal.com/news/article/litigant_is_accused_of_illegally_recording_custody_conference_and_posting_i/]


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Chapter 8: Procedural Issues

Discovery E-Discovery, no longer a smaller subset of discovery is by far the largest component of

discovery. In fact, I believe it is time to just get rid of the “e” as it’s all just discovery. Social Media is potential goldmine of evidence, because of low inhibitions, but also comes with a lot of personal, irrelevant material. Therefore, the party seeking social media discovery must show “the information is relevant or reasonably calculated to lead to the discovery of admissible information.” General principle – avoid fishing expedition while capturing anything potentially relevant.

Scope

150 Nassau Assocs. LLC v RC Dolner LLC, (2011 NY Slip Op 30337[U] [Sup Ct, NY Co,

Feb 14, 2011]). In denying the motion seeking information in its raw, electronic or "native" language form, the court noted that since defendant has already produced the information in the same form it uses the information, i.e., reports, and in the absence of anything other than a bald assertion that defendant maybe has something to hide, defendant should not have to provide the information in raw, electronic form "just so [plaintiff] can more easily reconcile the amounts."

Byrne v Byrne, (168 Misc 2d 321 [Sup Ct, Kings Co, 1996]). In a matrimonial action, Plaintiff wife took a laptop computer owned by her husband's employer that she believed to have financial information from the marital residence and gave it to her attorney. She argued that the laptop was used for business as well as for personal family financial matters and that she should therefore have access to its memory. The court held that the computer's memory is similar to a file cabinet and since she would have access to the contents of a file cabinet left in the marital residence. The court ordered that the parties' computer experts should meet at a mutually agreeable time for downloading memory files of the computer, so the documents could be deposited to the court and a list of documents made for defendant's counsel to review before turning over to plaintiff.

Determining the Scope: Barnes v CUS Nashville, LLC, (2010 US Dist LEXIS 143892, 2010 WL 2265668 [USDC MD Tenn, Jun 3, 2010] “In order to try to expedite further discovery regarding the photographs, their captions, and comments, the Magistrate Judge is willing to create a Facebook account. If Julie Knudsen and Michael Vann will accept the Magistrate Judge as a ‘friend’ on Facebook for the sole purpose of reviewing photographs and related comments in camera, he will promptly review and disseminate any relevant information to the parties.”

msciarri

Draft


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Pippins v KPMG (2012 WL 370321 [USDC SDNY Feb 3, 2012]). This was a class action where former KPMG employees brought suit against KPMG for incorrectly classifying them as exempt from overtime pay. KPMG filed a protective motion arguing to limit the scope of its preservation obligation of the thousands of hard drives the class sought in discovery. The Judge denied said motion, finding that the drives were likely to contain relevant information. Therefore, KPMG was ordered to preserve all hard drives of all potential class members until either the court ruled otherwise or the parties agreed to a sampling methodology. The court also refused to shift the cost burden to plaintiffs. Of note however is that it appears the court mandated KPMG preserve all hard drives because they failed to produce a single hard drive to the court for assessment. Therefore, there was no way for the court to balance the costs and benefits of preservation. (But See, Tracy, et. al. v NVR, Inc, 04-CV-654IL (USDC WDNY 3/26/12) which distinguished Pippins, and held that the corporate defendant did not engage in wrongful conduct by failing to preserve certain documents for all class members at the outset of the case.)

See Brendan Schulman, Samantha Ettari & Lisa Neunder, New York Courts Address Electronic Discovery of Social Media Data, (The Metropolitan Corporate Counsel 4/22/13). [http://www.metrocorpcounsel.com/articles/23556/new-york-courts-address-electronic-discovery-social-media-data]

Overbroad

It is the lawyer’s duty to make certain that his client preserves information on his personal

computer but only produce information that is relevant to the case, not the entire contents of the computer. It is too offensive for an opposing party to request and expect a mirror imaging of a personal computer which contains private information.

In Downs v. Va. Health Sys., 2014 U.S. Dist. LEXIS 74415, 6-11 (W.D. Va. June 2, 2014), the plaintiff brought an employment discrimination case after she was discharged as an executive secretary because she accessed her supervisor’s e-mail account and subsequently forwarded information from there to her personal email accounts without the authority to do so. The defendants requested mirror imaging from the plaintiff’s family computers but the plaintiff objected on the grounds that the request was ‘overly broad’ and ‘personally intrusive’. The court must strike a balance in determining whether the discovery of any non-privileged matter is relevant, and whether producing discovery is burdensome or intrusive on a party. Here, the court concluded that it would be proportionally unbalanced to allow the defendants to request mirror imaging of the plaintiff’s home computers. The court reasoned that the requested computer examination was unjustifiable, mirror-imaging the plaintiff’s family computers raised confidentiality and privacy issues, the plaintiff had no duty to preserve those computers, and the burden substantially outweighed the requested discovery. Proportionality Prevents Mirror Imaging of Family Computers,


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Bowtielaw.com, (6/30/214), [http://bowtielaw.wordpress.com/2014/06/30/proportionality-prevents-mirror-imaging-of-

family-computers/]

Schreiber v Schreiber, (29 Misc 3d 171 [Sup Ct, NY Co, 2010]). This case held that the

plaintiff was not "entitled to an unrestricted turnover of the computer hard disk drive in issue or in the form of its clone. Unlike a typical discovery demand which targets particular information, plaintiff's request was overbroad as it [sought] general - as well as unlimited in time - access to the entirety of defendant's business and personal data stored in his office computer. Equally important, plaintiff [had] proposed no discovery/issue resolution protocol." As such, plaintiff’s motion to compel was denied, with leave to renew, provided that plaintiff's "contain a detailed, step-by-step discovery protocol that would allow for the protection of privileged and private material." (See also, Karim v Natural Stone Indus. 19 Misc.3d 353 [Sup Ct Queens Co 2008]) (Third-party defendant seeking clone of plaintiff's hard drive).

Sterling v May (Index No. 106943/2009 [Sup Ct, NY Co, Nov 22, 2011]). The court held that the plaintiff's testimony that she had a Facebook account, in and of itself, was insufficient to establish a factual predicate necessary for disclosure of such records.

Temperino v Turner Constr. Co. (Index No.101541/2010 [Sup Ct, Richmond Co, Nov 30, 2011]) Defendant in a personal injury action sought plaintiff's Facebook records after seeing the public portion of plaintiff's account, including a photograph of plaintiff. The court (Justice Minardo) found that defendant failed to proffer what, if anything, was contained in the Facebook account that was "relevant" to the issues, and "the mere claim that plaintiffs were members of Facebook, in and of itself, is not a sufficient basis to require the issuance of a commission."

Kregg v Maldonado, (98 AD3d 1289 [App Div, 4th Dept 2012]). The Appellate Division held that “…the proper means by which to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident.” (See also, John Caher, Discovery Request for Social Media Accounts Is Found Too Broad (NYLJ 10/3/12)

General Electric v Wilkins (2012 WL 570048 [USDC ED Cal, Feb 21, 2012]). This case arose from a disputed patent interest. Defendants sought an order compelling the plaintiff to use specific criteria (predictive text) to search 405 backup tapes used to store computer server content. The plaintiff alleged that the retrieval costs were prohibitive. However, the court denied defendant's request because it concluded the tapes were not reasonably accessible and that the defendant did not demonstrate good cause requiring the plaintiff to expend resources in order to make them accessible.


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O'Neill v Weber ( Index No. 20459/2008 [Sup Ct, Suffolk Co, Nov 16, 2011]). The defendant served the plaintiff with a notice to admit, with each proffered admission relating to plaintiffs use of social media websites such as Facebook and Twitter. The court struck the notice on the grounds that, among other things, a notice to admit is not to substitute for other discovery vehicles, such as depositions and interrogatories, and where the information sought by defendant concerning plaintiff's use of social media was available through other means. The court also struck defendant's supplemental notice of discovery and inspection which sought production of all electronic and written data from plaintiff's computer, cell phone, personal digital assistant, and postings to his social media sites, as well as authorizations to access this information. Reiterating that "the test is one of usefulness and reason" and that "a party does not have the right to uncontrolled and unfettered disclosure," the court held that defendant had failed to establish "any foundation" to warrant access to plaintiff's electronic writings or social media accounts. The court noted that defendant had not deposed plaintiff on such issues, which "might" have provided the necessary foundation.

Winchell v Lopiccolo, (Index No. 7397/2010, NYLJ 1202580061065 [12/5/12] [Sup Ct, Orange Co, Oct 19, 2012]). In this car accident case, the plaintiff alleged in her Bill of Particulars that she suffered various injuries including mild traumatic brain injury, impaired cognitive functioning, cerebral dysfunction, motor organization deficit, memory impairments and difficulty concentrating. Defendant sought authorization to access the plaintiff's Facebook page for the purpose of discovering what it reveals about plaintiff's "ability to portray cognitive function." Defendant argued that the "layout of her Facebook page would demonstrate cognitive function inasmuch as the layout of a Facebook page calls for creativity of some sort as well as thought in providing captions for photographs, narrative posts written by the plaintiff as well as...her ability to write and comment...Moreover, lucid and logical writing or a lack thereof, would be useful in the defense and/or assessment of this case." The defense further elaborated that the manner in which the plaintiff uses her Facebook page, including expressiveness of language and lucidity of her statements will illuminate the nature and extent of her claimed psychological injury. The court found the authorization request to be overbroad as the court noted that every bit of information the plaintiff entered into her Facebook account displays some cognitive functioning. The court analogized the defendant's search for cognitive ability to that of mental and emotional health, as in EEOC v Simply Storage Mgmt (270 FRD 430, 2010 WL 3446105 [USDC SD Ind. May 11, 2010]) (See §12.3.1 for discussion of that case) which held that because mental and emotional health are hard to define does not mean that all information on a Facebook account must be disclosed. However, if the plaintiff made reference to the fact that she has difficult formulating the words to express her thoughts then that message would be relevant. Therefore the court denied the defendant's motion to compel access to plaintiff's Facebook page without prejudice to service of a more narrowly-tailored discovery demand. (See also, Richards v Hertz, 100AD3d 728 [App Div 2nd Dept 2012])


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Alliance Bernstein v Atha, (954 NYS2d 44 [App Div 1st Dept 2012]). The court held that

the trial court's order directing defendant to turn over his iPhone was beyond the scope of plaintiff's request, which was for the iPhone's call logs from the date he left plaintiff's employ. The court found the order was too broad for the needs of the case, analogizing the iPhone to a computer which contains much more information than what is sought. Additionally, the irrelevant information that would be disclosed could contain privileged communications or confidential information. The Court thus held that the iPhone and a record of its contents should be produced for in camera review to ensure that only relevant, non-privileged information would be disclosed.

In Elkharwily v. Mayo Holding Corp. (2014 US Dist. LEXIS 53890 [US Dist. Ct, Minn. 6/18/14]), the plaintiff, a hospitalist at MCHSAL, observed and reported instances of negligence, improper patient admissions, failure to follow care and coding procedures, compromised patient safety and fraudulent billing. The plaintiff’s employer terminated the plaintiff after he refused to resign and thereafter reported allegations to Mayo Clinic officials and Minnesota Board of Medicine. The plaintiff commenced a suit for breach of contract and for retaliation under the applicable laws. The Magistrate Judge found the requesting party’s demand for the opposing party to produce “all email and text messages sent of received on Mayo email and text messaging accounts” to be overly broad. Once the producing party produced responsive discovery with redactions, the requesting party challenged the overly broad ruling. The court held that the requesting party has no actual objection because the Magistrate Judge “expressly excluded from his order any determination regarding redactions or assertions of privilege, reserving consideration of those topics.” Reviewing requests for production and challenging the objections raise two issues: drafting a tailored request and having to prove production was inadequate. Attorneys should ask for specific communications, particular dates or timeframes, and specific subjects in order to prevent receiving irrelevant documents and have the burden of reviewing them. If a party thinks a production was inadequate, that party must provide some evidence of gaps which can include missing files that should have been produced, or missing emails. See, Joshua Gilliland, Lawyers from Drafting Overly Broad Requests, (Bowtielaw.com 5/20/14) [http://bowtielaw.wordpress.com/2014/05/20/lessons-from-drafting-overly-broad-requests/].

In, Sipperley v. Diaz, (Sup Ct, Nassau Co Unpublished, Index No. 013885/2013, Feb 26, 2014) the court, interpreting the term “relevant,” sought to limit what was described as plaintiff’s “wholesale intrusion” into the defendant’s life. A discovery request cannot go beyond the issues raised and must indicate that the materials requested will contain or could lead to the discovery of admissible, relevant evidence. As for the defendant the court ordered that he not “destroy or erase communications which may relate to the issues raised in the complaint, pending termination of the litigation.”


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See Mike Hamilton, "I Want Everything" Doesn't Work...Even for Social Media, (Exterro.com, 5/9/13). [http://www.exterro.com/e-discovery-beat/2013/05/09/%E2%80%9Ci-want-everything%E2%80%9D-doesn%E2%80%99t-work%E2%80%A6even-for-social-media/]

Pre-Action Discovery

CPLR § 3102 (c) authorizes pre-commencement discovery to aid in bringing an action or to preserve information. The rule is most often invoked to perpetuate testimony such as when a key witness is in extremis or about to depart the state.

Cohen v Google, Inc., (25 Misc 3d 945 [Sup Ct, NY Co, 2009]). Petitioner sought an order

pursuant to CPLR 3102(c) to compel pre-action disclosure "to aid in bringing an action" directing Google to identify the person(s) who posted blogs containing defamatory statements about her. Google did not oppose the motion, but the blog's author appeared anonymously through counsel and submitted opposition papers. The court found that petitioner had demonstrated that a cause of action existed and ordered Google to provide the petitioner with information as to the identity of the blogger.

Public Relations Socy of Am., Inc. v Road Runner High Speed Online, (8 Misc 3d 820 [Sup Ct, NY Co, 2005]). Petitioners sought to obtain pre-action discovery pursuant to CPLR 3102(c) to commence a defamation action against the sender of an alleged defamatory e-mail. However, the anonymous sender sought intervention to dismiss the action, arguing that petitioners failed to demonstrate a prima facie case of defamation and additionally that his statements are constitutionally protected. The court permitted discovery of the sender's identity on several grounds: (1) the petitioner stated a valid cause of action for libel; (2) the First Amendment did not preclude discovery of identity because the statements were not "pure opinion"; and (3) the five-factor disclosure evaluation test articulated in Sony Music Entertainment, Inc. v Does 1-40 (326 F.Supp.2d 556, 564 [USDC SDNY 2004]), weighed in favor of the disclosure sought.

Making the Discovery Available

Consolidated Sewing Mach. Corp. v Sanford, (19 Misc 3d 1114[A], 2008 NY Slip Op

50715[U] [Sup Ct, NY Co, Mar 21, 2008]). Defense counsel agreed to maintain custody and control of defendant's computer in his office to enable plaintiff's counsel to copy its hard drive for evaluation, provided that plaintiff's counsel identify its expert and arrange to copy the hard drive within two weeks, otherwise the computer would be returned to defendant. By letter defense counsel advised that since the two week period had elapsed without plaintiff's counsel taking any effort to obtain the requested discovery, plaintiff's right to obtain same is waived and counsel would be returning the computer to defendant.


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Thus, on plaintiff's motion to compel compliance with that order, the court found that defendant was no longer required to comply.

Diana v Manfre, (Index No. 13713/2011 Unpublished [Sup Ct, Nassau Co, Jan 24, 2012]). In a business dispute, the individual plaintiff demonstrated that, after he regained access to the corporate plaintiffs' offices, he had been locked out of the company's website, corporate passwords had been changed and the company's Facebook page had been deleted. The court, after a hearing, directed the defendants to immediately provide plaintiff the passwords to the company website, Facebook page and email accounts. (See, Mark A. Berman, Metadata Meets Facebook E-Discovery (NYLJ 5/2/12).

In Juice v. Twitter, Inc. (2014 NY Slip Op 51335(U), [Sup Ct, Kings Co, August 29, 2014]), petitioner, Lemon Juice, sought CPLR §3102[c] pre-action discovery in the form of “subscriber information” from a Twitter account and an order for Twitter to preserve certain documents related to that account, including an image that was posted. The petitioner sought this information as he alleged that another individual assumed his identity under a false Twitter account and posted a picture of a witness testifying during trial. Petitioner was arrested for taking the photo, although the charges were ultimately dropped. Before petitioner could bring his suit for intentional infliction of emotional distress, he needed to identify the individual behind the fake Twitter account. Supreme Court Justice Francois Rivera first held that petitioner’s motion for pre-action discovery was appropriate as he had a meritorious cause of action and the information he sought was material and necessary to the action. He also held that the First Amendment provided no bar to obtaining the materials as the conduct tin question was not protected speech. Therefore, he ordered Twitter to disclose the “subscriber information” and to preserve the relevant documents. John Caher, Court Orders Twitter to Reveal Data on Handle's ID, (NYLJ, September 4, 2014)


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Using Same eDiscovery Vendor

While the Electronic Discovery Reference Model code of conduct encourages eDiscovery

vendors from working on both sides of the same case, this practice was recently approved of in the limited situation described in Gordon v. Kaleida Health (2013 US Dist. LEXIS 73334 [US DC WDNY, 5/21/13]). In that case, eDiscovery vendor D4 Discovery was retained by the Defendant’s counsel, Nixon Peabody, to provide scanning and coding services. Plaintiff later retained D4 discovery as consultants. The court held that there was no conflict of interest because D4's involvement with the defendant was limited to scanning and coding documents - a “routine clerical function” - whereas D4's involvement with the Plaintiff was a consultant role requiring “expert knowledge or skills.” See, Victor Li, Judge Refuses to Disqualify EDD Vendor for Playing Both Sides, (Law Technology News, 7/16/13) [http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1373969233976&Judge_Refuses_to_Disqualify_EDD_Vendor_for_Playing_Both_Sides]

Mediation of E-Discovery Disputes.

Today almost every case now has some sort of electronic evidence (email, texts, GPS Data, Spreadsheets, Social media postings, etc.), E -Mediation can help all parties involved in a lawsuit conserve time, money and stress when taking part in E-Discovery disputes. Most importantly, E-Mediation offers the parties a means to have control over their discovery in a confidential manner. Typically, lawyers for the litigants would agree to e-mediation at the outset of the case in order to develop a discovery plan. The e-mediator would request the participation of the client’s IT leader, general counsel, and outside counsel in order to better understand the possible issues that may arrive later on in proceedings. Since the e-mediators are focused mostly on technology, it is vital that lawyers educate them about their role in the process. To help the e-mediator better understand the issues, all parties should prepare an “E-Mediation statement” that helps provide the mediator advance details about the dispute. E-mediation is beneficial to litigants because each party is given an opportunity to discuss e-discovery candidly, allowing attorneys to communicate e-discovery issues without either side feeling vulnerable. Once all parties agree to a “Mediated E-Discovery Plan”, the case can proceed, governed by the e-discovery plan. If any problems arise, the parties can return to the e-mediator in order to quickly resolve any problems. See, Allison Skinner & Peter Vogel, E-Mediation Can Simplify E-Discovery Disputes, Law Technology News (9/23/13), [http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202620012101&rss=rss_ltn_news&slreturn=20130823150029].


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With the explosion of discoverable electronic material, case managers are being assigned to cases to manage the litigation process. Richard Levie was one such “neutral” and describes his experience as an efficient one with “special master work with the parties to resolve issues without the necessity of going to the court and using judicial time and resources.” See, Allison Skinner, The Evolving Role of E-Discovery Neutrals, Law Technology News, (Law.com 12/16/13). [http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202632945386&The_Evolving_Role_of_EDiscovery_Neutrals&slreturn=20140007101620]

What Sources Did You Search?

In American Home Assur. Co. V. Greater Omaha Packing Co., Inc., (2013 US Dist LEXIS 129638 [US DC Neb, Sept. 11, 2013]), a federal court in Nebraska ordered a defendant to disclose all of the sources it searched to respond to an e-discovery request, and to disclose all of the keywords it used to perform its searches. The plaintiff in the case filed a motion to compel production based solely on the fact that they expected to receive a greater amount of production than they did. Plaintiffs did not allege that any specific documents were missing, nor that any type of production was missing. The motion was based on the fact that defendants only provided 25 emails. The court initially held that it could not “compel the production of information that does not exist.” However, the court later in its opinion went on to compel disclosure of defendant’s search methods and sources. The court reasoned that this order provided plaintiffs “an adequate opportunity to contest discovery of ESI.” This case shows a recent trend, specifically with E-Discovery motions, that certain types of search methods will not necessarily be protected by Attorney Work Product Confidentiality. Rather, with the types of new technology available to all parties, it is likely that search methods will need to be disclosed. Ralph Losey, Party Ordered to Disclose Where and How it Searched for ESI: You Can Expect This Kind of Order to Become Commonplace, (e-discoveryteam.com 10/6/13). [http://e-discoveryteam.com/2013/10/06/party-ordered-to-disclose-where-and-how-it-searched-for-esi-you-can-expect-this-kind-of-order-to-become-commonplace/]

New York Duty to Preserve ESI

Thus far, there is no specific statutory guidance and no definitive ruling from the Court of Appeals as to when the duty to preserve ESI attaches. However, most of the state courts seem to follow the more developed body of federal cases.

In Magnuson v. Newman, (2013 US Dist LEXIS 138595 [SDNY Sept. 25, 2013]) the

Plaintiffs sought to sanction Defendants based upon their alleged failure to preserve and produce emails and documents relevant to the case. Defendants contended that they had conducted searches and had produced every responsive document they could. To justify the imposition of a sanction, the moving party must establish: (2) the party having control over the evidence had an obligation to preserve it at the time it was destroyed, (2) the


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records were destroyed with a culpable state of mind, and (3) the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. The Court held that while the disclosures did not include documents that were once in their possession and would have been relevant to the case, Plaintiffs had not met their burden of proof. Plaintiffs cited no authority to support the proposition that Defendants were grossly negligent per se because they admitted to failing to back up the computers. Plaintiffs did not prove the Defendant had a duty to preserve the email when it was destroyed, and instead focused on the fact that the computers were not backed up or a litigation hold was issued. Moreover, the Defendants could have only been on notice of the duty to preserve at a certain date, when they had a 3-month email retention policy and some of the emails requested had been deleted prior to notice. Lastly, the failure to issue a litigation hold is not outcome determinative, it is only one factor courts consider. The duty to preserve is probably the trickiest part of litigation because often lawyers have to share news with clients that disrupt business and various other challenges. Overall, lawyers cannot argues for sanctions if there was no duty to preserve and the failure to issue a litigation hold is not outcome determinative, it is only one factor courts consider. See, Joshua Gilliland, You Need a Duty to Preserve Before Issuing Sanctions (Bowtielaw.wordpress.com 11/8/13) [http://bowtielaw.wordpress.com/2013/11/08/lit-

hold/]

The plaintiffs leased aircraft to Varig Logistica (“VarigLog”), a subsidiary of one of MP defendants. VarigLog’s ESI was destroyed in accident prior to 2009. Plaintiffs sued VarigLog due to (1) breach of aircraft lease agreements and for conversion of the aircraft and (2) on an “alter ego theory” and on the theory that the defendants’ conduct constituted direct conversion. The issue is whether the defendants had direct control over VarigLog during the period of April 1, 2008 through VarigLog’s bankruptcy filing on March 3, 2009 to render the MP defendants liable for sanctions for spoliation based on VarigLog’s loss of its relevant electronically stored information. The court in Pegasus Aviation I, Inc. v. Varig Logistica S.A., (2014 NY App Div LEXIS 3981 [App Div 1st Dept 2014]) ruled that the facts of the case do not support a finding of gross negligence. The court noted that the motion court properly determined that MP defendants had a duty with regard to the preservation of VarigLog’s ESI on this record it cannot be said that the MP defendants’ failure to discharge this duty was “so egregious as to rise to the level of gross negligence.” The court ruled that “at most, a finding of simple negligence against the MP defendants” and thus, the plaintiffs must prove that the lost ESI would have supported their claims, which they have failed to prove.


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Best Practices for Preserving ESI It would be a safe practice that a party must preserve evidence upon being placed upon notice: (1) that the evidence might be needed for future litigation; or (2) pending litigation; or (3) that the circumstances of an accident may give rise to enough of an indication for defendants to preserve the physical evidence for a reasonable period of time.

Clawback. If an attorney fails to request a clawback order in every case, he may be committing e-discovery malpractice. The clawback agreement is an agreement that extends the protections that the Federal Rule of Evidence 502(b) and provides to prevent “disclosure from operating as a waiver in three circumstances:” (1) Inadvertent disclosure, (2) the privilege holder reasonably tried to prevent disclosure, (3) the holder reasonably took steps to fix the error. Since protection is limited because the court determines reasonableness, the parties should encourage other rule provisions such as Rules 502(d) and (e). Rather than simply signing a clawback agreement, it is essential that parties request the court to enter into that agreement and assert the following provisions:

Reference Rule 502(d) of the Federal Rules of Evidence and avoid mentioning Rule 502(b), “inadveratance,” and “reasonableness.”

Require immediate return or destruction of privileged and confidential materials upon discovery of their production or upon notice by the disclosing party.

Prevent the use of protected materials in the current litigation.

Preclude the use of protected materials produced purposefully and unintentionally in any other federal or state proceeding.

See, Are You Committing E-Discovery Malpractice?, Xerox E-Discovery Talk, (5/14/14) [http://ediscoverytalk.blogs.xerox.com/2014/05/14/are-you-committing-e-discovery-malpractice/#.VBhjoaTD_4g]

Courts may be favorable to predictive coding and alternative discovery methods, but parties ought to obey discovery protocol agreements with their adversaries, and to that end anticipate the need for predictive coding early on. Predictive coding has become a more favorable method for narrowing a universe of materials to what are responsive, discoverable materials. However, courts may still express hesitations about a producing party going beyond the agreed discovery methods. In Progressive Casualty Insurance Co. v. Delaney (2014 US Dist LEXIS 69166 [USDC Nev 2014]) the court rebuked Progressive for delaying the discovery process and waffling on its chosen method of discovery review by using predictive coding, which was not agreed to, after attempting other methods. In fact, throughout the discovery period, Progressive produced hardly anything to the requesting party


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The parties entered into a discovery protocol agreement that did not expressly allow for use of predictive coding. The producing party, Progressive, used a simple “search term” method to cull 565,000 “hit” documents out of a possible 1.8 million. At this point Progressive could either turn those documents over, with a clawback agreement protecting potentially privileged documents turned over, or undergo further review of these documents manually. Progressive chose that latter, but would soon regret. Progressive claimed that this method was far too burdensome and expensive, so it sought to use predictive coding on the 565,000 “hit” documents. During discovery conferences throughout the period the requesting party voiced its concerns to Progressive regarding its discovery methods that were not in line with what was agreed to.

Progressive asked the court to approve an amended discovery protocol permitting it to use predictive coding on the 565,000 “hit” documents. The court did not grant Progressive permission here, instead granting the requesting party’s motion to compel. In granting the motion the court ordered Progressive to turn over the 565,000 “hit” documents subject to the clawback provisions. The court also gave Progressive permission to apply a privilege filter to the 565,000 documents and to withhold those documents deemed more likely privileged, provided Progressive serves the requesting party with a privilege log and that progressive produce these logs according to a particular timetable.

In this case the court’s decision focused on the secretive unilateral action of Progressive in using predictive coding. It stated that “the cases which have approved technology assisted review of ESI have required an unprecedented degree of transparency and cooperation.” To this effect the court frowned upon Progressive’s intransigence in how it would create the “seed” set for the predictive coding program and how their attorney would “train” the program to filter out the correct documents. So not only was Progressive trying to use predictive coding, which was not agreed to, it was also trying to use that method as a means to surreptitiously conceal how it was filtering the responsive documents from the non-responsive. Again, the court says “In the handful of cases that have approved technology assisted review of ESI, the courts have required the producing party to provide the requesting party with full disclosure about the technology used, the process, and the methodology, including the documents used to ‘train’ the computer.”

It’s one thing for a producing party to choose its preferred method of sorting discoverable documents, it’s another thing entirely to unilaterally choose a different discovery method and to use that method as a means to be uncooperative and secretive. While the court made sure to note the benefits and effectiveness of predictive coding it was in no way pleased with how Progressive sought to use predictive coding in this instance. In practice an ESI protocol agreement should not limit a party in terms of methodology and analytics, but rather in terms of the universe of discoverable material. Bow Tie emphatically explains that predictive coding is being twisted because “lawyers think they need permission to use it. They do not.” H. Christopher Boehning and Daniel J. Toal, Court Praises Predictive Coding, But Ultimately Rejects It, (NYLJ 8/5/14); How Not to Be Progressive: Court Rejects Predictive Coding Not Agreed to By Parties, (BowTieLaw.Wordpress.com 5/22/14) [https://bowtielaw.wordpress.com/2014/05/22/how-not-to-be-progressive-court-


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rejects-predictive-coding-not-agreed-to-by-parties/] Although predictive coding is more efficient in ESI searches than traditional keyword search and is acknowledged by the court to be so, it is important to begin a business relationship with an expert consultant rather than bring one in at a later date, as evidenced by the holding of Progressive. Predictive coding is a dynamic, rapidly developing area that has the potential to revolutionize how lawyers research and conduct discovery. See, Ralph Losey, The “If-Only” Vegas Blues – Part One, (6/9/2014) [http://e-discoveryteam.com/2014/06/08the-if-only-vegas-

blues-part-one/]; Ralph Losey, The “If-Only” Vegas Blues – Part One, (6/16/2014) [http://e-

discoveryteam.com/2014/06/15the-if-only-vegas-blues-part-two/].

Some More Case Examples:

Mosley v Conte, (2010 NY Slip Op 32424[U] [Sup Ct, NY Co,Aug. 17, 2010]). Defamation action. Parties vigorously disputed the permissible scope of electronic discovery, specifically with regard to fashioning appropriate keyword searches. The court applied general principles of New York law pertaining to disclosure, concluding that those principles applied to computer discovery. Because the court concluded that the defendant had failed to establish diligent efforts to retrieve the requested materials, it directed that certain key word searches be performed by the defendant. The Court further authorized the plaintiff to conduct a search of all available computers through a forensic expert chosen by the Plaintiff and to submit all documents retrieved to the court for an in camera review. Simultaneously, the forensic expert was to provide a copy of those documents to the defendants for preparation of a privilege log. Finally, the court directed defendant to provide a detailed affidavit describing his search and explaining what, if any, measures were taken to preserve the computers and/or ESI which may not have been preserved.

Einstein v 357 LLC, (2009 NY Slip Op 32784[U] [Sup Ct, NY Co, Nov 12, 2009]). Action for fraudulent inducement and violation of Consumer Protection Act pertaining to an allegedly defective condominium. The plaintiff’s claimed that defendant’s failure to produce certain emails was evidence of spoliation of evidence or selective editing of discovery responses. Specifically, plaintiffs moved to strike pleadings or to compel full responses to discovery demands, and presented evidence that defendants failed to produce certain emails. After hearing testimony from defendant’s director of information technology, the court found that they failed implement any change in its retention policy upon the commencement of the litigation with respect to the production of ESI. The court concluded that the defendants had continued to delete e-mails according to their ordinary business practices, even after litigation had commenced and that requested documents had not been produced, and when produced had been produced selectively.

Attorneys should inform their clients about preserving social media that can be used for electronically stored information. A lawyer can advise a client to limit her social media

activity but should not tell a client to deactivate an account to prevent leaking relevant


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information. Even though information on social media can easily be preserved through print outs or snapshots, attorneys should hire experts who can garner necessary information on social media and then can authenticate the preservation of social media by having the expert testify. A Measured Response to Social Media Preservation, Bowtielaw.com, (6/17/14) [http://bowtielaw.wordpress.com/2014/06/17/a-measured-response-to-social-media-preservation/]

o A court granted the Defendant’s motion to compel production of the plaintiff’s Facebook profile after the plaintiff deactivated her account on her attorney’s advice her to do so. The court held that although the plaintiff and attorney were expected to reactivate the Facebook account, defense counsel did not have to be present at that time and the plaintiff did not have to produce her account login information. Additionally, plaintiff was to provide screen shots of the relevant information on her Facebook account. Chapman v. Hiland Operating, LLC [2014 U.S. Dist. LEXIS 74248 (US DC North Dakota, Southwest District, May 29, 2014)].

With the increasing use of email for communicating within the workplace, it may behoove certain companies to look into the possibility of investing in programs that allow for messages to be sent, but not stored or kept. This would allow for certain sensitive subject, like health care information, to be sent more quickly while protecting a person from having the information saved and possibly used in future legal battles. Some companies, like financial institutions, are required by law to maintain records of certain communicated information. Self-deleting apps like Snapchat, allow users to send pictures or videos that automatically delete after a certain amount of time. By introducing this sort of technology into the business would, it may be easier to streamline communications of matters that a sensitive in nature, such as health care information. Although self-deleting messaging apps might seem very appealing and highly useful to some companies, a problem may arise when a company may be facing a law suit and is required by law to preserve any relevant documents. Once a party reasonably anticipates litigation, they must suspend their

document destruction policy to ensure the preservation of relevant documents, otherwise they may face legal repercussions. While companies are allowed to balance the burden of retaining files with the company’s right to manage its electronic information in the best interest of the enterprise, courts are hostile towards litigants who are perceived as trying to skirt their discovery obligations. There are little to no regulation or guidelines on how courts should deal with information and self-deleting apps and the courts treatment of that information may change based jurisdictionally. Until then, companies looking to capitalize on the benefits of these apps should be wary of the potential legal ramifications the apps could lead to. Peter Isajiw, Issues With Self-Destructing Messages in the Workplace, (NYLJ 03/10/2014).


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Don’t Ask the Court to Order What You are Supposed to Do Anyway! Spoliation made redundant an incarcerated, pro se plaintiff’s motion for a temporary restraining order intended to halt a corrections facility from destroying video footage related to an incident where an officer attempted to forcefully obtain a DNA sample from the plaintiff. Ross v. Conner, (2014 US Dist LEXIS 146887 [US DC WDNC Oct. 15, 2014]) Plaintiff Javarr Ross brought civil claims under the Fourth and Eighth amendments and moved to appoint counsel in addition to moving for a preliminary injunction and a temporary restraining order relating to evidence relevant to the case. In his cause of action Ross alleged that one officer had used excessive force in attempting to obtain a DNA sample while others either acquiesced and thereby assisted in the use of force or failed to investigate and protect the plaintiff. Upon review, the court dismissed three defendant officers from the action and maintained the action as to the other three defendant officers, namely those who directly participated and assisted in the use of force. The court denied plaintiff’s motions for a preliminary injunction and a temporary restraining order. While the plaintiff was able to demonstrate that the Marion Correctional Institution’s policy was to destroy video surveillance within one year of recording the court found that this was not enough to overcome the doctrine of spoliation. This doctrine places a duty upon a party to “preserve evidence when litigation is filed or becomes reasonably anticipated.” In fulfilling this duty a party is obligated to “suspend its routine document retention/destruction policy and implement a ‘litigation hold’ to ensure preservation of relevant documents.” The plaintiff may have reasonably feared destruction of the video evidence that could be used against the defendants. But even in such an event, the plaintiff is still not without recourse. Destruction of evidence in abrogation of the duty to preserve would result in sanctions, the court reasoned. Maybe plaintiffs should include a “preservation letter” with their complaint. The preservation letter is a device used merely to remind the opposing party of their duty to preserve this valuable evidence, but is also used to put the opposing party on notice of what ESI will be relevant in the case. A preservation letter is certainly a better course of action than asking the court to order a party to preserve evidence that the party is already obligated to preserve making the order completely redundant. Can You Ask the Court to Order a Party to Follow the Duty to Preserve? (BowTieLaw.Wordpress.com 10/16/14) [https://bowtielaw.wordpress.com/2014/10/16/can-you-ask-the-court-to-order-a-party-to-follow-the-duty-to-preserve/]

See Spoliation Section infra.

Non-Party Discovery Similar issues with respect to the form of production and the allocation of costs will arise when a subpoena is served upon a non-party for ESI. As e-discovery becomes more commonplace, emails are often sought after as important, and telling documents that should be disclosed. However, there are reasonable concerns of privacy that need to be reconciled with the need to


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obtain evidence that might help the case. A blanket rule that third-party motions to quash should be granted because disclosure can be obtained elsewhere is not required to balance these interests, because the risk of non-disclosure of emails will certainly increase. Additionally, a blanket rule allowing an automatic grant of third-party motions to quash seem overbroad and unreasonable. In every department but the Fourth, disclosure requires more than the “material and necessary” standard. (See, Schroder v. Consolidated Edison Co. of New York, 249 AD2d 69 [App Div 1st Dept 1998]; Tannenbaum v. City of New York, 30 AD3d 357 [App Div 1st Dept 2006]; Kooper v. Kooper, 74 AD3d 6 [App Div 2nd Dept 2010]; Troy Sand and Gravel v. Town of Nassau, (80 AD3d 199 [App Div 3d Dept 2010]; Kephart v. Burke, 306 AD2d 924 [App Div 4th Dept 2003]; Catalano v Moreland, 299 AD2d 881 [App Div 4th Dept 2002]).

Of course, some practical issues arise when trying to deal with the implications of being

unable to procure documents from third parties when documents are unavailable from any other source or whether or not reasonable redundancy is allowed to ensure all disclosure is provided. This can pose a number of problems and courts should consider each issue on a case-by-case basis, especially in the early stages of technology assisted review (TAR, see supra). An amendment for CPLR 3101(a) is also being considered in order to include relevant and properly broad/narrow language for universal and logical law to be developed in this area. See, Thomas F. Gleason, Seeking E-Disclosure from Third Parties, (NYLJ 3/17/2014)

Third party discovery has become extremely important when it comes to electronically stored

information. When conducting discovery, litigators must be sure to make sure their third party discovery practices are efficient and cost effective. Even the Federal Rules of Civil Procedure (FRCP) and New York’s CPLR have taken into consideration the burden of discovery on third parties. Parties seeking discovery need to minimize the burden placed on third parties, and in some cases cost-shifting may be deemed appropriate by the court. The federal courts has listed many different factors to determine when cost-shifting is appropriate, many of which focus around whether the third party has an interest in the case, whether the third party can readily bear the costs, the reasonableness and scope of the request, and the public importance of the litigation. Counsel should be aware of the factors the courts used to determine when cost-shifting is appropriate as well as make sure the scope of their discovery is not overly broad and burdensome in order to avoid cost-shifting. Evan Glassman & Jeffrey A. Novack, Third Party Discovery in the Electronic Era, (NYLJ 04/28/2014).

Tener v Cremer, (89 AD3d 75 [App Div, 1st Dept 2011]) Issue: whether a nonparty must

search for potentially inaccessible data. In a defamation action, plaintiff sought production of ESI from a nonparty pursuant to subpoena. Specifically, plaintiff sought the identification of all persons who accessed the internet via the IP address for an NYU portal. NYU failed to produce the information and plaintiff moved for contempt. The trial court denied the motion in part because it found NYU did not have the ability to produce the requested information as the text file was allegedly overwritten and was otherwise


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irretrievable. On appeal, plaintiff established that the information could potentially be accessed using retrieval software. The Appellate Division reversed and remanded for a hearing on whether the information was inaccessible. The Appellate Division further instructed that, because NYU was a nonparty, the costs of production should be borne by the plaintiff and “should consider whether to include in that allocation the cost of disruption to NYU’s normal business operations.”

Carrick Realty Corp. v Flores, (157 Misc 2d 868 [Civ Ct NY Co,Mar 26, 1993]). A judgment in favor of plaintiff Carrick Realty was entered against Flores and the plaintiff served post judgment subpoenas on non-parties to obtain information on Flores and others. The payroll processing companies stated that to obtain the information, they would need to create new computer programs or perform inordinately time consuming and costly searches of their records. The court held that the companies could not be compelled to install new software or otherwise alter their existing computer systems to answer the subpoenas and that they are not required to incur the enormous costs of searching. Moreover, because plaintiff was unwilling to bear the cost of retrieval of the information, the court refused to consider potential modifications to provide the information sought.

Sekisui American v. Hart, (2013 US Dist Lexis 115533 [US DC SDNY, 8/15/13] (discussed supra and infra) underscores the importance of considering “where is my data, and who is in control of it?” when litigation is forthcoming. The Second Circuit has broadly defined “control,” and does not necessarily look to possession as a determining factor. In practical terms, a litigant may have control of their data when it is being stored by an offsite provider service. As such, in a litigation context it is vital for any litigant to have an understanding of where its data is, and whether the proper parties have access to it. Understanding any relationship with others who hold or store information that litigants may later need to preserve, collect and produce is key. If a litigant fails to understand these issues pre-discovery, it may lead to sanctions or worse. Barry M. Kazan & Emily J. Mathieu, Obligations When Third Parties Control Data, (NYLJ 10/7/13). [http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202621942351&Obligations_When_Third_Parties_Control_Data&slreturn=20130907143411]

Before the court granted an application for an order to disclose subscriber information attached to an anonymous IP address, the court weighed the need for disclosure against First Amendment interests, including:(1) a concrete showing of a prima facie claim of actionable harm; (2) specificity of the discovery request; (3) the absence of alternative means to obtain the subpoenaed information; (4) a central need for the subpoenaed information to advance the claim and (5) the party’s expectation of privacy. In addition, the court ordered that the anonymous user be notified of the subpoena and be provided with a reasonable opportunity to oppose the subpoena. (Edelson v. Doe, Index No.: 14824/2013 [Sup Ct, Suffolk Co., Jan 16, 2014]).


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The California Court of Appeal in Vasquez v. California School of Culinary Arts, Inc. (230 Cal. App.4th 35 [Cal App Aug 27, 2014]) tackled ESI and third party obligations. In the California courts Sallie Mae fought to quash a business records subpoena regarding loans given to culinary schools students. The students were taking action against the school for defrauding them into enrolling and required Sallie Mae to produce records pertaining to loans those students received. After Sallie Mae complained that the first subpoena incurred prohibitive costs the plaintiffs made a second subpoena that allowed Sallie Mae to produce the documents in a more affordable electronic format and requested an estimate of costs. Plaintiff’s acknowledged the need to pay for the costs of production in connection with both subpoenas. Sallie Mae objected to the second subpoena and moved to quash, arguing that it was information already in the possession of the plaintiffs and would be unduly burdensome to produce because it would require significant effort to create the searchable/sortable format Plaintiff’s requested. This, Sallie Mae argues, would require them to do more than simply produce the requested documents, but rather to conduct extensive research into producing the way requested. Sallie Mae complained of having to implement technology programming to create a sortable and searchable spreadsheet that did not already exist, which would be beyond permissible scope of discovery. To decide the issues on appeal the court relied on Federal case law, with California State law having little precedent regarding ESI under section 1985.8 of the Code of Civil Procedure. Under Federal precedent the court found unpersuasive Sallie Mae’s argument that they could only be compelled to produce the records as they already existed. The court relied on Gonzales v. Google, Inc., 234 FRD 674 (ND Cal 2006) in stating that “a nonparty cannot avoid complying with a subpoena seeking electronically stored information on the ground that it must create new code to format and extract that information from its existing systems.” There Google was not excused from the burden of production due to the technical difficulties of producing the records as requested. A crucial point is that Sallie Mae never argued that it did not have the information requested or that it could not find the information. Rather, Sallie Mae argued that producing the information as requested would be difficult, and would not provide an estimate of costs regarding that production until after its motion to quash was decided. The California Court of Appeal decided to uphold the trial court’s ruling that Sallie Mae’s refusal to comply with Plaintiff’s subpoena lacked substantial legal justifications. Furthermore, the Court of Appeal held that the trial court did not abuse its discretion in awarding Plaintiff’s attorney fees they incurred in opposing the motion to quash in addition to awarding the Plaintiff’s attorney fees from this particular appeal challenging the trial court’s decisions. See, Marlisse Silver Sweeney, Calif. Court of Appeal Tackles ESI (LawTechnologyNews.com 11/5/14) [http://www.legaltechnews.com/id=1202675586319/Calif-Court-of-Appeal-Tackles-ESI-?slreturn=20150117135253]

See, Sherri Sonin and Robert J. Genis, Social Media and Privacy Rights of Nonparties in Discovery (NYLJ 11/30/12)


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Craig Ball Modern E-Discovery Requests: Six Steps to Help Litigators Lose the Boilerplate and Write Requests as Sleek and Modern as ESI Itself. (Law.com 12/1/13).[http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202630112765&Modern_EDiscovery_Requests#i

xzz2pjOSvXtf] Advancements in ESI technology have developed and changed discoverable material and such the manner of requests must be reformed to reflect requisite materials imperative to litigation. Bell creates six steps to aide lawyers with this technological transformation: Step 1: Consider: "Requesting party seeks relevant, non-privileged information in all forms in which it is stored and communicated." What escapes that simple description? Step 2: If you don't absolutely need to say "any" or "all" in every request, don't. If that terrifies you, add this to your preface: "Requests for production should be read so as to encompass any and all items responsive to the request." Just say "including" when examples are required and add a preface that says, "Examples of responsive items set out in any request should not be construed to limit the scope of the request." Step 3: Don't define a term unless you use it, and conform your usage to the term defined. Step 4: Specify forms of production sensibly and precisely. Don't assume that "native format" is clear or sufficient; instead, specify the formats sought for common file types.

See, e.g. Castillon v. Corr Corp of Am, (2014 US Dist LEXIS 17950 [US DC IDAHO, Feb. 7, 2014]) Action was filed by a group of prisoners against the parties that manage and own the correctional facility where they were attacked and injured by another group of prisoners. Discovery disputes arose between the parties’ attorneys and after mediation, the parties agreed to a discovery stipulation. This was short-lived and the plaintiff’s filed a motion to compel additional documents, alleging that those documents fell under the categories of two of the existing stipulations. The court determined that the Plaintiff’s motion was frivolous because the request clearly included some documents that were not part of the original stipulation, and a prudent attorney would have recognized this. The Defendant’s counsel delivered the discoverable (mostly database) materials pursuant to the parties’ stipulations and RULE 34 in a PDF format. The Plaintiff’s then contended that the PDF format is not useable, as it would take between 300-500 hours to reformat the materials into a preferred


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format. The Defendant’s stated that the PDF format is the only built-in, reasonable format in which to deliver these materials, and to change the format, would require a small team and approximately 3-4 days. The court held that since the Plaintiff’s did not specify the format in which the materials should be produced, under RULE 34, the Defendant is entitled to produce them in either the form in which it is ordinarily maintained or in a reasonably useable format. Therefore, delivering the documents in a PDF form is acceptable and fulfills the discovery requirements Defendants are subject to. It is good practice to consider how best to review data from a database when drafting discovery requests. Such issues are best resolved quickly to avoid lengthy battles, hearings, and possible sanctions. Both parties should discuss the format of database exports if such issues are likely to arise in the case. See, Joshua Gilliland, What is the Form of Production for a Database? (Bowtielaw.wordpress.com 2/20/14). [http://bowtielaw.wordpress.com/2014/02/20/what-is-the-form-of-production-for-a-database/]

Step 5: Set out acceptable options for the medium of production such as, "Productions smaller than 10 GB should be made using DVD recordable optical media. Productions larger than 10 GB but smaller than 128 GB should be made using a flash/thumb drive or portable external hard drive. Productions larger than 128 GB should be made using a portable external hard drive." Step 6: Develop a comprehensive production protocol tailored to the case and serve same with discovery. Short of that, specify the particular items of metadata and header fields you seek, for example: "Produce delimited load file(s) supplying relevant system metadata field values for each information item by Bates number." FIELD VALUES

The field values supplied should include: Source file name (the original name of the item or file when collected

from the source custodian or system). Source file path (the fully qualified file path from the root of the

location from which the item was collected). Last modified date and time (the last modified date and time of the

item when collected from the source custodian or system). Custodian or source (unique identifier for the original custodian or

source). Document type. Production file path (file path to the item from the root of the

production media). MD5 hash (MD5 hash value of the item as produced).


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Redacted flag (indication whether the content or metadata of the item has been altered after its collection from the source custodian or system).

Embedded content flag (indication that the item contains embedded or hidden comments, content or tracked changes).

Deduplicated instances (by full path). UTC Offset (The UTC/GMT offset of the item's modified date and

time, for example, -0500). ADDITIONAL FIELDS

o These additional fields shall accompany production of email messages:

o To (addressee(s) of the message). o From (email address of person sending the message). o CC person(s) copied on the message). o BCC (person(s) receiving blind copies of the message). o Subject (subject line of message). o Date received o Time received o Attachments (beginning Bates number(s) of attachments,

delimited by comma). o Mail folder path (the path of the message from the root of the

mail folder). o Message ID (the unique message identifier).

Ditch the boilerplate—and please don't deploy the examples above as

new boilerplate.

The forms of production you seek should mirror the forms you can review using the tools at your disposal—in other words, your review platform.

Craft your requests to sound as if they were written by a human being

instead of a lawyer.

Finally, when it comes to electronically stored information, if you must fish, use a spear, not a net.

ELECTRONICALLY STORED INFORMATION

Information that exists in electronic form is specifically requested to be produced in native or near-native formats and should not be converted to imaged formats. Native format requires


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production in the same format in which the information was customarily created, used and stored by you. The table below supplies examples of the native or near-native forms in which specific types of electronically stored information should be produced. Source ESI Native or Near -Native Form or Forms Sought Microsoft Word Documents .DOC, .DOCX Microsoft Excel Spreadsheets .XLS, .XLSX Microsoft PowerPoint Presentations

.PPT, .PPTX

Microsoft Access Databases .MDB, .ACCDB WordPerfect Documents .WPD Adobe Acrobat Documents .PDF Images .JPG, .JPEG, .PNG

Email

Messages should be produced so as to preserve and supply the source RFC 5322 and 2049 content of the communication and attachments in a fielded, electronically searchable format. For Microsoft Exchange or Outlook messaging, .PST format will suffice. Single message production formats like .MSG or .EML may be furnished if source foldering data is preserved and produced. If your workflow requires that attachments be extracted and produced separately from transmitting messages, attachments should be produced in their native forms with parent/child relationships to the message and container(s) preserved and produced.

Databases

Unless the entire contents of a database are responsive, extract responsive content to a fielded and electronically searchable format preserving metadata values, keys and field relationships. If doing so is infeasible, please identify the database and supply information concerning the schema and query language of the database, along with a detailed description of its export capabilities, so as to facilitate crafting a query to extract and export responsive data.

Documents that do not exist in native electronic formats or which require redaction of privileged content should be produced in searchable .PDF or as .TIFF with OCR text furnished and logical unitization preserved.

Costs In cases involving large volumes of ESI and well-heeled parties desiring to litigate the cost allocation issue, reference to the FRCP and federal decisions is appropriate. FRCP 26 (b) (2) identifies the factors the court should consider in making determinations of proportionality and in cost allocation. Two major cases - Rowe Entertainment, Inc. v William Morris Agency, Inc. (205


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FRD 421 [USDC SDNY 2002]) and Zubulake v UBS Warburg LLC (217 FRD 309 [USDC SDNY 2003]) - have introduced multi-factor tests to determine when cost shifting is appropriate:

Rowe: (1) the specificity of the discovery requests; (2) the likelihood of discovering critical

information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefit to the parties obtaining the information; (6) the total cost associated with production; (7) the relative ability of each party to control costs and its incentive to do so; and (8) the resources available to each party.

Zubulake: in descending in order of importance: (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, compared to the amount in controversy; (4) the total cost of production compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information.

Other Cases:

Kwan Software Eng’g, Inc. v. Foray Techs., LLC, (2014 US Dist LEXIS 63933[US DC ND Cal. May 8, 2014]). A federal court in California dramatically reduced a prevailing parties’ awarded costs, bringing their awarded costs down from $88,848.13 to $32,983.59. The losing party, Veripic, requested a review of the awards claiming that costs for service of summons, printed or electronically recorded transcripts, and exemplification and copies should have been disallowed. The court relied on FRCP 54(d), creating the presumption of rewarding costs to the prevailing party, 28 U.S.C. §1920, enumerating the expenses that may be taxed in a federal court, and finally Civil Local Rule 54-3, providing standards for interpreting the costs allowed. Based on these provisions the court determined that the costs for service of summons and subpoena and the costs for printed and electronically recorded transcripts should be completely disallowed and the costs for exemplification and duplication, which included e-discovery documents, would be reduced to $7,106.65. Foray, the prevailing party, did not contend, and withdrew its request for costs, that costs for service of summons are not taxable under 28 U.S.C. §1920, thus allowing the court to dispense of this issue swiftly. In regards to the transcripts, Foray claimed entitlement to costs related to expedited deposition transcripts. Unfortunately, in this particular jurisdiction courts “have held that the cost of expedited delivery is not recoverable,” upholding Veripic’s objection to these costs. The court thus moved on to the more difficult issue relating to costs for exemplification and duplication. 28 U.S.C. §1920(4) provides that a court may tax “fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” Civil Local Rule


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54-3(d)(2) similarly provides the court may tax “the cost of reproducing disclosure or formal discovery documents when used for any purpose in the case.” The 9th Circuit has limited these awards, stating that “fees for exemplification and copying are permitted only for the physical preparation and duplication of documents, not the intellectual effort involved in their production.” Here Veripic arguing on two fronts, claiming that the e-discovery costs requested went beyond the costs of actual production and that Foray failed to properly detail and itemize their actual production costs. Veripic brought to the court’s awareness a serious discrepancy between Foray’s invoices and their October 7, 2013 production, where Foray produced 229,000 pages of documents but the invoice showed charges for 344,445 pages. The court charged a rate of $0.03 for each of these documents, bringing the costs to $6,780, and added an additional $236.65 in costs for physical copies that were undisputed by Veripic. Key to the court’s reduction on these grounds was that Canon Business Process Services invoiced Foray for data storage and data management, which are not taxable costs under the applicable laws and rules. Thus, in situations involving eDiscovery a prevailing party is strictly limited to recovering for their actual production efforts, and not efforts beyond that productions such as storage services. Furthermore, a party may not recover costs for an eDiscovery services provider if the invoices do not clearly state what services were provided for data storage and management and what services were provided for production. Parties ought to be on the same page as their services provider, namely in ensuring that invoices are accurately and clearly itemized regarding what services were billed. He explains that project management costs could be recoverable costs if they clearly demonstrated that the costs related to actual copying and production, and not intellectual efforts such as data management. Proper invoices will educate a judge “on why the actions were done in order to produce the discovery in the litigation.” Always Document Services to Explain eDiscovery Services for Taxation of Costs, (BowTieLaw.Wordpress.com May 12, 2014). [https://bowtielaw.wordpress.com/?s=always+document+services+to+explain+ediscovery+services+for+taxation+of+costs]

Finkelman v Klaus, (17 Misc 3d 1138[A], 2007 NY Slip Op 52331[U] [Sup Ct, Nassau Co, Nov 28, 2007]) The court held that under CPLR 3122 (d), a non-party may recover reasonable production expenses, including the cost of retrieving ESI and the attorneys' fees incurred in reviewing the ESI for privilege. In so doing, the court noted that "the costs of producing electronic records can be very steep and while what constitutes reasonable production expenses has not been well defined by state courts, guidance can be obtained from federal court decisions." The court further stated that "unanimity" is lacking: federal courts have held that the reasonable cost of labor expended to do a document production, including attorney's fees, are covered under Federal Rule of Civil Procedure 45 in addition to copying costs. The court also recognized the "sound rationale behind the federal rule" that non-parties should not have to subsidize the costs of litigation and that "in fact, in the Practice Commentaries to CPLR 3122, it is noted that while reference to attorneys' fees is not made in that statute, '[t]he court would be empowered to direct such a payment,


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particularly where any substantial right of the non-party witness is involved and representation by an attorney is needed'."

Klein v Persaud, (25 Misc 3d 1244[A], 2009 NY Slip Op 52582[U] [Sup Ct, Kings Co,

Dec 21, 2009]); Following the court’s confirmation of Petitioner’s arbitration award, Chase Bank, a third party, sought expenses of $9,112.00 as “production expenses” ($4,550.00 for time spent locating and retrieving documents and $4,562.00 for printing). The court reduced the amount to $1,192.10 for time spent locating and retrieving documents and $58.17 for printing. The court noted that “[t]wo CPLR Rules deal with production costs for a non-party. CPLR Rule 3111 states that a deposition subpoena may require the production of books, papers, and other things in the possession, custody or control of the person to be examined to be marked as exhibits, and used on the examination. The reasonable production expenses of non-party witness shall be defrayed by the party seeking discovery. CPLR Rule 3122(d) allows a non-party witness to provide, unless specifically directed to provide original documents, complete and accurate copies of the items to be produced. Further, the reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery. Production costs can include providing electronic discovery, such as e-mail.”

U.S. Bank N.A. v GreenPoint Mtge. Funding, Inc., (94 AD3d 58, 63 [App Div, 1st Dept 2012]) held that Zubulake “presents the most practical framework for allocating all costs in discovery, including document production and searching for, retrieving and producing ESI.” (See also, Ahroner v Israel Discount Bank of N.Y., 2009 NY Slip Op 31526[U] [Sup Ct, NY County, Jul 9, 2009], afd 79 AD3d 481 [App Div, 1st Dept 2010]).

Blue Tree Hotel Investments (Canada) Ltd. v Starwood Hotels & Resorts Worldwide, Inc., (C 604295-00 [Slip Op] [Sup Ct, NY Co, Jul 29, 2003]). In this case, the plaintiff hotel owners subpoenaed non-party Arthur Anderson (who provided audit services for the managing agent, Starwood Hotels & Resorts.) The court agreed with the hotel owners that ". . . Anderson has done nothing to demonstrate just how time consuming and expensive" it would have been to retrieve the ESI requested. Even though non-party objected to producing ESI based on the expense, court, citing Zubulake, required non-party to produce "readily accessible documents such as 'active, on-line data'" within ten days and further required it produce within thirty days an affidavit "outlining the steps that must be taken to comply with Blue Tree's subpoena, including the format in which the data is stored and projected costs and time and retrieval."

Not the same as Making Copies. Country Vintner of North Carolina v. E & J Gallo Winery Inc., 2013 US App Lexis 8629 (USCA 4th Cir, Apr. 29, 2013). This case was an appeal from the Eastern District of North Carolina's Decision that the Defendant would only be taxed the costs of converting ESI to non-editable formats, and transferring those files onto CDs under 28 USC s 1920(4). That section allows the Court to tax as costs the costs of making copies of any materials where the copies are obtained for use in the case.


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As an initial matter, the court held that Section 1920(4) applies to documents produced in discovery. The Court also examined the meaning of "making copies" as it applies in the statute, holding that as the statute applies to electronic data, the costs of converting electronic files to non-editable formats and burning those files onto discs is taxable. However, the Court rejected the argument that the ESI processing (the "flattening" and "indexing" of ESI which ultimately allowed the electronic files to be converted) costs constituted "making copies" under the statute. As a result, the Defendant was only awarded $218.59 out of the $111,047.75 they sought. Although the copying could not have occurred without the ESI processing, the Court was reluctant to shift this processing cost. The District Court was affirmed. (See, Mike Hamilton, J.D., 4th Circuit Follows 3rd Circuit's Lead Concerning 28 USC 1920[4], [exterro.com, 5/23/13].) [http://www.exterro.com/e-discovery-beat/2013/05/23/4th-circuit-follows-3rd-circuit%E2%80%99s-lead-concerning-28-u-s-c-%C2%A719204/?utm_source=rss&utm_medium=rss&utm_campaign=4th-circuit-follows-3rd-circuit%25e2%2580%2599s-lead-concerning-28-u-s-c-%25c2%25a719204]

In the case of CBT Flint Partners, LLC v. Return Path, Inc., 737 F3d 1320 (Fed Cir 2013), originally tried in the US Court of Appeals for the 11th Circuit, the US Court of Appeals for the Federal Circuit found that, in the 11th Circuit, recovery for e-discovery costs under 28 USC § 1920 (4) is limited to taxation of costs directly related to documents that are actually produced. The Federal Circuit Court concluded that the 11th Circuit had not addressed the scope of § 1920 (4) since the statute had been amended, but earlier precedent stated that the statute allows recovery only for costs of duplicating documents for production and not for costs related to gathering documents prior to duplication. Additionally, the amended statute contemplates electronic document production, but the scope of the amendments did not expand beyond costs of duplication. Therefore, only the costs for duplicates are recoverable. The Federal Circuit then used a three-stage analysis to determine which activities fall within the category of duplication, and therefore, which costs are recoverable. During stage one, documents are collected and prepared for analysis, and vendors typically copy hard drives and similar media then process them in order to extract individual documents. Such costs may be recoverable if the activity is reasonably necessary for responding to the request. At stage two, the documents are organized and categorized for production, which results in a subset of documents. These activities are not within the meaning of duplication and associated costs are not recoverable. At the last stage, documents are copied onto media and loaded onto computers for review. These activities do constitute duplication and such costs are recoverable. See, Bryan James, E-Discovery Costs Related Specifically to Production Recoverable (Natlawreview 2/1/14). [http://www.natlawreview.com/article/e-discovery-costs-related-specifically-to-production-recoverable]

In Race Tires America, Inc v. Hoosier Racing Tire Corp, (674 F3d 158 [3rd Cir 2012]) Race Tires sued Hoosier, a competitor, for various antitrust violations, alleging damages of over $30 million dollars. After a year’s worth of discovery, Hoosier produced over 600,000 pages of ESI and sought costs in the amount of


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$384,058.46. The District Court (Western District of Pennsylvania) allowed Hoosier to recover costs for all outside e-discovery vendor activity because such activities are the equivalent of making copies in the 21st century and requires a high level of expertise. The Third Circuit affirmed in part, vacated in part, and remanded in part. The issue was whether all charges imposed by e-discovery vendors to assists in the collection, processing, and production of electronically stored information (ESI) are taxable against a losing party as “[f]ees for exemplification [or] the costs of making copies of any materials where the copies are necessarily obtained for use in the case” pursuant to 28 USC § 1920(4). The Court held no. Under rule 28 USC § 1920(4), only scanning to create electronic copies, conversion from native files to an agreed-upon file format for ESI production, and conversion of VHS tapes to DVDs are recoverable as costs for making copies, but that none of the activities of e-discovery vendors are exemplification of materials.

There are two interpretations of exemplification: (1) exhibits and demonstrative aids, or (2) an official transcript of a public record, authenticated as a true copy for use as evidence. The Court determined that exemplification, as Hoosier contends, does not fall under either definition, and though did not articulate a standard itself. The Court used the plain meaning definition of “copy” and considered that copying materials included copying electronic files, but the Court rejected the claim that the activities leading up to the duplication of documents constitute copying, because those activities are analogous to paralegals and lawyers sifting through, sorting, and categorizing discovery documents in the pre-electronic media age. This type of activity is already part of the discovery process and is outside of the scope of the statute, and as such, these costs are not recoverable.

Updating taxation of costs to include recovering collection and processing costs of e-discovery is a good idea because these steps do actually constitute “making a copy” of the data, though courts have hesitated to include these steps in its decisions. Cost recovery may be more likely if service providers and attorneys explain how these steps actually do constitute “making a copy” instead of using vague language that doesn’t actually describe the process. The more that is explained to a judge, the more likely he or she is able to understand how the process works, and be more likely to award costs. See, Joshua Gilliland, You Want $60,572.61 in Costs? Here is $25.48 (Bowtielaw.wordpress.com 3/6/14) [http://bowtielaw.wordpress.com/2014/03/06/you-want-60572-61-in-costs-here-is-25-48/]

Where statute provided for reimbursement of costs, the question for the court became what fees were reasonable for an e-Discovery vendor. In the case discussed, United States of America ex rel., John Becker v Tools & Metals, Inc., et al. (2013 US Dist LEXIS 46529,[ ND Texas, 3/31/13]), the vendor charged the client $880,705. Going through the vendor services line item by line item, the court found that the fees were unreasonably high and


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reduced the award to $549,281. The court spent much time focused on the necessity of certain services rendered by the firm rather than reasonability. The lesson here is that litigant ought to be vigilant in negotiating prices with e-Discovery firms at the outset of a case. Courts Struggle With Determining Reasonability of e-Discovery Vendor Bills (e-Discovery Team blog, 7/22/13). [http://e-discoveryteam.com/2013/07/22/courts-struggle-with-determining-reasonability-of-e-discovery-vendor-bills/]

In Tampa Bay Water v HDR Engineering, (2012 US DIST LEXIS 157631, [M.D. Fla, 11/2/12]) where the e-discovery vendor processed and hosted 2.7 million documents, the defendant was awarded $3.1 million for their e-discovery vendor fees after a favorable jury verdict. This was a professional malpractice lawsuit between a utility company and engineering firm that failed to settle. In addition, the defendant was awarded about $9 million in attorney fees and almost $8 million for other costs incurred. See, $3.1 Million e-Discovery Vendor Fee Was Reasonable in a $30 Million Case (e-Discovery Team Blog, 8/4/13). [http://e-discoveryteam.com/2013/08/04/3-1-million-e-discovery-vendor-fee-was-reasonable-in-a-30-million-

case/]

Apple Successfully Recovers eDiscovery Production Costs. Apple Inc. v. Samsung Elecs. Co., (US Dist LEXIS 132830 [ND Cal Sept 19, 2014]) Following a dispute over taxable costs in relation to their landmark infringement litigation Apple was awarded over $1.8 million in fees from Samsung. Of the total costs awarded $238,102.66 was solely for eDiscovery costs. Apple’s original request of $1.47 million was reduced so dramatically because, while Apple uploaded a substantial number of documents, only about 16.12% of the documents uploaded were actually produced. Prevailing parties typically do not take anything home in taxation of costs cases, Bow Tie’s author notes. The Northern District of California takes a more forward thinking approach as opposed to other jurisdictions, however. In these types of cases an eDiscovery providers accounting and invoicing of their service is crucial, and must be precise. Apple at first sought costs in relation to 100% of the documents they uploaded with the eDiscovery service. However, the local rules of the Northern District of California only allow for recovery of costs associated with discovery production to the adverse party. Local Rule 54-3(d)(2) provides for recovery of “the cost of reproducing disclosure or formal discovery documents when used for any purpose in the case” and 28 USC §1920(4) provides similarly for costs spent on “exemplification and copies of papers necessarily obtained for use in the case.” The Northern District, in interpreting its Local Rule, has routinely awarded eDiscovery costs for that production associated with “making copies,” and has routinely rejected awarding costs for the “intellectual effort” in analyzing what needs to be uploaded and later produced or for unproduced material. The court, in keeping with its interpretations of the local rules and in its own discretion, chose to reduce Apple’s costs award. According to the court opinion at page 90 Apple uploaded 2,101,808 documents, but only produced 338,860 documents totaling 2,944,467 pages. The fees did not include the costs for hosting the data, licensing fees for the software, or vendor consulting time. At the end of the day Apple successfully recovered in costs a total of $1,871,302.78 of a requested $5,737,695.02. How Apple


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Successfully Recovered eDiscovery Production Costs, (BowTieLaw.Wordpress.com 9/25/2014) [https://bowtielaw.wordpress.com/2014/09/25/how-apple-successfully-recovered-ediscovery-production-costs/]

Court Gives Tough Love to Defendant in Discovery for Products Liability Case. The concept of proportionality encompassed by FRCP 26(b) did not apply in Webb v. Ethicon Endo-Surgery, Inc., (2015 US Dist LEXIS 82275 [D Minn Jan 26, 2015]). Here the defendant claimed the documents were located in multiple databases. Both parties objected to the scope of discovery, with the plaintiffs claiming the scope was too narrow and the defendants claiming it was too broad. Furthermore the defendants objected to the additional discovery requests made by plaintiff, which were beyond the limit of the Pretrial Scheduling Order. Defendants claimed that discovery of documents pertaining to the entire TX line of medical staplers was disproportionate because the burden or expense of the proposed discovery would outweigh the likely benefit. The disproportionality arose due to the particular product having been manufactured for nearly 18 years, and therefore the documents would be located in many databases. The District Court of Minnesota did not buy the defense’s arguments. The Magistrate of the lower court had already struck a compromise between the two parties, and the District Court did not feel any sympathy for the defense’s database woes. The court went on to say at 16-17 “The fact that a corporation has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.” There was no doubt that the information requested was relevant to the dispute and the defense’s reluctance to sift through the materials to find the appropriate documents was not a legitimate reason to narrow the scope of discovery. As Bow Tie suggests, arguing that searching your own databases would be too burdensome “is like arguing a party should be protected from its own self-inflicted wound on how they manage different databases.” Not a winning argument, to say the least. Stapling Proportionality, (BowTieBlog.Wordpress.com 2/6/15) [https://bowtielaw.wordpress.com/2015/02/06/stapling-proportionality/]

Plaintiffs, in Owens v. Clear Wireless LLC, (2014 US Dist LEXIS 26698 [US DC Minn. March 3, 2014]) a suit over minimum wage and overtime wage provisions under the Fair Labor and Standards Act, sought to shift the costs of production to the defendants. The plaintiffs made a motion to compel production, in addition to seeking to shift costs, of the plaintiff’s own work e-mails, which were stored in their personal accounts on personal computers. The magistrate judge denied the plaintiff’s motion as to cost shifting leading to the plaintiffs bringing this dispute before a Federal District Court Judge. Upon stating the “extremely deferential” standard of review, that a district court judge will set aside a magistrate judge’s order only if the decision on a non-dispositive issue is “clearly erroneous,” the district court judge found no reason to disturb the magistrate judge’s decision. The plaintiffs attempted to support their point by claiming that shifting of the costs was necessary due to proportionality. The court did not buy this argument, reasoning that cost-shifting would only be considered if, as under Zubulake v. UBS Warburg LLC,


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the emails were not accessible to the plaintiffs. Clearly, since they were stored in personal email accounts on personal computers, they were accessible and therefore the magistrate’s decision was not clearly erroneous or contrary to law.

Email messages, stored in the cloud with Yahoo or Gmail or another service provider, are “not ‘not reasonably accessible’ to the producing party.” There are simple methods to capturing and producing the necessary files, a task that can be given to a computer forensic expert. The emails can be downloaded from the cloud into Outlook or download the emails to applications preserving them in a reasonably accessible file. See, Don’t Argue Gmail is Not Reasonably Accessible, (BowTieLaw.Wordpress.com 4/28/14) [https://bowtielaw.wordpress.com/2014/04/28/dont-argue-gmail-is-not-reasonably-accessible/]

NY Cost Shifting Analysis. In Kennedy Assoc. v. JP Morgan Chase Bank N.A., (2014 NY Misc LEXIS 51 [Sup Ct, NY Co, January 7, 2-14]) the defendant moved to compel plaintiff to shift costs of production of electronically stored information. New York law presumes that the producing party bears the costs of discovery but the court implemented a test for determining when cost-shifting is applicable for ESI production. First, the requested documents need to be deemed inaccessible (dependent on how the documents are stored), and then the courts balance seven factors to determine whether cost-shifting is appropriate. These factors include: (1) the extent to which the request is tailored to discover relevant information, (2) the availability of the information from other sources, (3) the total cost of production versus the amount in controversy, (4) the total cost of production versus each party’s available resources, (5) each party’s ability to control costs, (6) the importance of the issue, and (7) the benefits of obtaining the information. The first two factors carry the most weight, followed by factors three--five and factors six-seven are rarely applied.

Here, (1) plaintiff specifically requested email records of only certain employees and the potentially found information is relevant, (2) the plaintiffs are unable to retrieve the emails in another manner, (3) the cost production is greater than the estimated recovery costs for plaintiff, and (4) the defendant, a multi-international corporation, has the ability to commit resources to the discovery process. With regards to the seven factors, the court concluded that the factors weighed more heavily against cost-shifting but the balancing of the factors require some cost-shifting; of the most important factors, factors 1,2,4 weigh against cost-shifting while only factor 3 weighs in favor. Therefore, the costs are apportioned and the plaintiff should pay its share of estimated costs to defendants.

Denied Cost Shifting (and some Form of Production). In Mancino v. Fingar Ins Agency, (2014 NY Misc LEXIS 30 [NY Sup Ct Jan. 2, 2014) The plaintiffs sued for breach of contract, negligent misrepresentation, and professional negligence. Plaintiffs purchased


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home insurance from defendants, but the complaint alleges that these policies were inadequate to cover the loss sustained after their home was burglarized. Plaintiffs move to compel, among other things, electronic version of defendants electrically stored information in native format and with TIFF images in order to view metadata that is material and necessary to the case, pursuant to CRLR § 3101(a). Defendants oppose stating that Plaintiffs are not entitled to such production because the issues do not concern metadata, or in the alternative, Plaintiffs pay about $3,500 for producing the TIFF format data, which is a laborious task. The court held that the producing party bears the cost of production, even with respect to electronically stored information. Costs, in the courts discretion, may be shifted to the requesting party upon evaluating the seven factors articulated in US Bank Nat’l Ass’n v. GreenPoint Mortgage Funding, Inc., (94 AD 3d 58, 63-64 [App Div 1st Dept 2012]). The Court held that the producing party must bear the costs and ordered the production of the data in the native format and TIFF. See, Joshua Gilliland, The Empire Strikes Back (On the Form of Production (Bowtielaw.wordpress.com 2/12/14). [http://bowtielaw.wordpress.com/2014/01/13/the-empire-strikes-back-on-the-form-of-production/]

It is even expensive for the government! A hearing before the House Ways and Means Committee illustrated how electronic storage of information can be limited by budgetary constraints and physical capacity – even for the federal government. When Internal Revenue Service Commissioner John Koskinen gave testimony, he explained how limited funding forced users to store emails locally on their own hard drives as opposed to on the server. Therefore if a user’s computer crashed, so did the information stored therein. Any organizations struggling to deal with volumes of data should be cautioned: storage is not cheap; not every email is important; computers do not always work the way they were designed. With that in mind, companies should pay attention to proposed amendment to FRCP Rule 37(e) which sets forth the standard and type of sanctions to be imposed for data loss. Patrick Oot, E-Discovery: Even IRS Computers Crash (Law Technology News, June 29, 2014) [http://www.lawtechnologynews.com/id=1202661307730/EDiscovery-Even-IRS-

Computers-Crash]

Form of the Production

The Federal Rules of Civil Procedure provide great leeway in specifying the form of production of ESI, requiring that it be produced in a format which is “reasonably useable.” Failure to specify a form of production can result in ESI being produced in a technically useable format, but deficient for litigation purposes. Therefore, every attorney should have a standard ESI protocol from which to craft a customized form of production for a particular case. At a minimum, attorneys should be specifying the form of production in their document request (or subpoena), and include the following provisions with appropriate specificity:


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A standard load file format, typically expressed as a .DAT file, containing

1) An image of the document.

2) Extracted text or OCR from the native form of that document.

3) Metadata associated with the original document.

Metadata should include the following fields:

• Beginning and ending Bates numbers for each document (BegDoc/EndDoc).

• Beginning and ending Bates numbers for any attachments or family members associated with that document (BegAttach/EndAttach).

• The custodian, filename and file extension of the document.

• The date the document was created and modified.

• For e-mail, include the to, from, cc, bcc, date sent, time sent, date received and time received and subject.

• For all documents, you may want the hash value created to identify duplicates, if produced, and to the extent duplicates are suppressed in production, the names of the custodians associated with the suppressed duplicates.

Metadata requests could include more than 100 potentially-useful fields that can be sought depending on the nature of your case and the value of that information—so understanding metadata and how it can tell part of the document’s story is critical.

• Native production for files that don’t lend themselves to image creation, such as large, multi-page, multi-tab excel spreadsheets or media files.

• A privilege log.

Marc Zamsky, Vendor Voice: The Much Overlooked Importance of ESI Form of Production (Legaltech News, 1/28/15) [http://www.legaltechnews.com/id=1202716368745/Vendor-Voice-The-

Much-Overlooked-Importance-of-ESI-Form-of-Production?slreturn=20150614083958]

Metadata: encourages parties to turn over any native files via a defensible collection tool

which would ensure that any metadata is preserved. A Good Cause Metadata Nursery Rhyme, (Bow Tie Law’s Blog, 8/1/13) [http://bowtielaw.wordpress.com/2013/08/01/a-good-cause-metadata-nursery-rhyme/].

Metadata – the hidden data that is embedded in all electronic files – can prove exceptionally useful in litigation. However, like all else, it must be used strategically and carefully. First, when seeking metadata, it is important to have a plan and stick to it. Seeking every single file from every single


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computer may be counterproductive, given the time it would then take to sift through all the metadata from those computers. Second, analysis of metadata is not always straight forward. Sometimes, when metadata was generated can be the smoking gun or even deleted files can provide metadata that breaks open a case. Finally, analyzing metadata is not for the layman. Merely opening a computer file to review automatically changes the metadata. Forensic experts have the tools to review documents without changing the data. John Burchfield, 3 Rules for Using Metadata in Litigation (Corporate Counsel, July 2, 2014), [http://www.corpcounsel.com/id=1202661637360/3-Rules-for-Using-

Metadata-in-Litigation]

A lesson on the importance of metadata: An internet artist named Kyle Lambert posted a video to YouTube in which he purported to create an iPad finger painting of a photo of Morgan Freeman. The finger painting, done on an app called Procreate looked almost identical to the photo. However, simply by looking at the metadata of the original file, the author was able to determine that the file was created in July 2011 – two years before Procreate was released. Further digging into the metadata revealed that the image was heavily edited in Photoshop. It should go without saying that metadata can be invaluable. However, under FRCP §34[b][2][E[ii], if the requesting party does not specifically request a native file (which is the only file that contains metadata), then the responding party has the option to provide the files in a “reasonably useable form.” That form may include a TIFF file or PDF which will have been stripped of invaluable metadata. See, Jeff Bennion, What Morgan Freeman’s Face Teaches Us About Metadata And E-Discovery (Above the Law, May 20, 2014) [http://abovethelaw.com/2014/05/what-morgan-freemans-faces-teaches-us-about-metadata-and-e-

discovery/]

In addition to metadata, there may also be is information that is “hidden” in files that can also provide a wealth of information. While metadata is created automatically by a computer, hidden data is typically user generated. Hidden data includes comments on tracked changes in word processing documents, concealed rows or columns in spreadsheets or speaker notes in presentations. This information can reveal the mental impressions or strategies of those who generated the document. Document review software can reveal this hidden information. There’s More To Electronic Documents Than Meets The Eye, (Law Technology News June 2014) [http://www.avantstar.com/metro/reference?path=A1x478ex1y1x4794x1x66y1x4a6fx1x65y8x6c05x8x1]

Dartnell Enters., Inc. v Hewlett Packard Co., (33 Misc3d 1202[A][ Sup Ct, Monroe Co,

Sep 13, 2011]) Plaintiff moved to compel production of documents in native format including metadata. Defendant asserted that CPLR 3122(c) only requires production of hard copies, which it had done. The court rejected defendant's argument in part because plaintiff had "shown inconsistencies as to the information available from the hard copy and the native electronic format." Defendant also did not assert that production in native format would be "unduly difficult or burdensome to obtain and produce." The court concluded that "[e]lectronic documents in their native language form may be discoverable even when a hard copy has been provided."


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Locks v. PRC Indus., (2014 NY Slip Op 31933(U) [Sup Ct, Suffolk Co July 9, 2014]). When producing emails as part of discovery materials a producing party has an obligation to produce that information in their native format, in addition to the information being sortable and searchable. Emails are also required to be sent with their attachments.

Weng v. Yao, (2013 US Dist Lexis 70352 [EDNY, May 17, 2013]). Court denied plaintiff’s

request for disclosure of metadata from a Word document which was a translation of a hand written document originally written in Chinese denied where the defendant freely admitted that the Word document was created after litigation commenced and where the original document was still available and would trump any discrepancies.

In the case of RPM Pizza, LLC v. Argonaut Great Cent Ins Co, (2013 US Dist LEXIS 165200 [MD LA Nov. 15, 2013]), the requesting party (FYI, RPM is Domino’s Pizza) specified a format in which the requested documents were to be produced, and the producing party challenged this request because the requesting party had not shown why it was necessary for the producing party to produce the documents in a manner that complies with their instructions. The Court held that the requesting party did not need to show that a production instruction is necessary and that the requesting party was fully within their rights under RULE Rule (34)(b)(2)(E), which allows a party to specify the form of production for documents. Additionally, the producing party had waived any objections by not making them in a timely manner and objecting generally to the requesting party’s instruction. Many attorney’s still fight over forms of document production and many of them do not understand the correct way in which to request ESI. Additionally, fighting over the form of production is an expensive, time consuming, and unnecessary because smart review technology exists and courts are careful in applying rules and standards for e-discovery, given that the complexities are just beginning to reveal themselves. See, Joshua Gilliland, Pizza and Metadata: Order It The Way You Want It (Bowtielaw.wordpress.com 11/26/2013). [http://bowtielaw.wordpress.com/2013/11/26/pizza-metadata-order-it-

the-way-you-want-it/]

In Kuznyetsov v. West Penn Allegheny Health Sys., 2014 US Dist.LEXIS 150503[USDC WD PA Oct 23, 2014]) Plaintiffs filed a Motion to Review Taxation of Costs, seeking judicial review of the Clerk of Court’s taxation of costs against them in the amount of $60,890.97. Taxation of costs by a clerk of court is subject to de novo review by a district court. The plaintiffs argued that the Clerk’s taxation of costs must be vacated because 1) the defendants are not the prevailing party and 2) costs awarded for e-discovery costs that were not necessary and were awarded at “unreasonably high rates.” The plaintiffs argued that the defendants are only the prevailing party with respect to the three named plaintiffs but not with respect to the opt-in plaintiffs because the opt-in plaintiffs’ cases were dismissed without prejudice. The court disagreed. The plaintiffs argue that the costs


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associated with Optical Character Recognition (“OCR”) were unnecessary. The defendants noted that in fact the plaintiffs requested the information be produced in, inter alia, OCR format. The “scanning and conversion of native files to the agreed-upon format for production of ESI constitutes ‘making copies of materials’ as pursuant to § 1920(4). The court ruled that 5 cents per page for TIFF services are not unreasonably high nor is 24 cents per page for scanning documents. Finally, the court ruled that there is no merit in the plaintiffs’ argument that they are of “modest means.” The court notes that the combined annual income as of January 2014 is $300,000 and further notes that counsel advised plaintiffs of the risk of litigation including costs. It was strange to see the words “native file” and “scanning” and “OCR format” in the same sentence. Native files are already electronically stored information and business data such as email messages and Word documents are already searchable. There is no reason to print the ESI to paper, then scan them and then perform optical character recognition on them. Maybe “the court was discussing both scanning paper and conversion of native files in the same sentence, without directly saying ‘paper documents’ before ‘conversion of native files.” It is recommended to produce native files to keep costs down and only convert privileged or confidential native files to TIFFs or PDFs for redaction. However, if native files need to be converted to static images such as TIFFs in order to redact confidential information, making static images searchable with OCR would make sense, “because you want to produce information that is searchable but not with the confidential informational also searchable.” Yet if native files converted into static images did not need to be redacted, there would be no reason to make them OCR searchable. Therefore, a producing party could simply produce the “extracted text” from the native files, thus including searchable information for a review database to comply with Federal Rules of Civil Procedure. See, Joshua Gilliland, Did a Judge Say Scanning of a Native File and OCR? (Bow Tie Law 11/3/14) [https://bowtielaw.wordpress.com/2014/11/03/did-a-judge-say-scanning-of-a-native-file-and-ocr/]

Rule 34:

Magistrate Judge Paul Grewal sagely opens his opinion in Venture Corp. Ltd. v. Barrett, (2014 US Dist LEXIS 147643 [USDC NDCA Oct 16, 2014]) with these words:

Most lawyers (and hopefully judges would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or Property) come to mind. But Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its


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standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.

Federal Rule of Civil Procedure 34(b)(2)(E) was put in to place to prevent the typical litigation strategy of the “document dump.” This strategy was used to unload relevant materials on a litigation adversary, with the materials organized in no fashion whatsoever. To prevent this unfair tactic from sticking around Rule 34 requires documents to be produced “as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the request.” If a request does not specify categories then Rule 34 requires that a “party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”

Judge Grewal confronted this tactic being put to use in Venture Corp. Ltd. v. Barrett. There a plaintiff produced 41,000 PDFs and native files with no index, table, or anything else besides folders with the files. Venture, the producing party, even admitted that the production lacked organization and labels. Judge Grewal explains that there are separate obligations that FRCP 34 places on a party. In Rule 34(b)(2)(E)(i) applies where the requesting party asks for the documents to be organized in a particular fashion. Rule 34(b)(2)(E)(ii) applies absent any agreement as to organizing the requested documents, therefore requiring a minimum level of organization on the part of the producing party, such as producing documents as they are ordinarily maintained or in a reasonably useable form. In either case, the producing party is not absolved from an obligation to produce documents as they are ordinarily kept in the course of business even where there is an agreement as to the organization of the production.

The benefits of Rule 34(b)(2)(E)(i) lie in obligating parties to organize production making document review less of a nightmare. A useful tool in production would be for the producing party to reserve an entire column of the database for the request for production numbers, ensuring that each request has resulted in responsive discovery. Including this column in the production would no doubt assist the requesting party in reviewing the documents produced, but also would help the producing party know what exactly they have produced. Rule 34: As Basic As You Get, (BowTieLaw.Wordpress.com 11/26/14) [https://bowtielaw.wordpress.com/2014/11/26/rule-34-as-basic-as-you-get/]

o In the employment case German v. Micro Electronics, Inc., (2013 US Dist LEXIS

4594 [SD Ohio Jan 11, 2013]), the United States District Court for the Southern District of Ohio rejected the plaintiff's argument that financial and physical hardship justified the manner of production. The case focused largely on the appropriate manner of production for online content, including the plaintiff's calendars and online activity, such as blogging. The plaintiff had argued that she could not afford to make copies and that carpal tunnel syndrome rendered her unable to use her hands on a laptop or iPad. The plaintiff produced electronic material copied from blogs and websites, which was then pasted into a lengthy


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email and printed by her attorney. However, the defendants maintained that the production was deficient because "it was not guaranteed to capture the original and complete text, formatting, and images of a blog or website." The defendants preferred production as PDF copies or a format that was similarly " reviewable and captures the documents in their original format." The court, in addition, noted that the production did not accurately identify the source of the text. The court rejected the plaintiff's argument that production of screen shots was unduly burdensome and not mandated by Rule 34 because the materials were "ordinarily maintained" on external servers within multi-tiered Web pages, rendering the creating of PDFs time and cost intensive.

o Parties often disagree on ESI protocol either because there are legitimate,

unresolved, and ambiguous discovery issues and disputes, or the lawyers enjoy fighting. This case was wrongly decided and encourages more motion practice and appeals. Expert affidavits can help explain to judges the value of native files and metadata in order to support their claims. Producing this requesting ESI in PDF form increases costs and demand more time because it prevents analytical data from working. This notwithstanding, Rule 34 is still clear that the requesting party is at liberty to request a format of ESI so long as it is not burdensome, and especially when the producing party never specifically objected to the form of production. See, Joshua Gilliland, Excuse Me, PDF’s Instead of Native Files? (Bowtielaw.wordpress.com 10/2/13).

[http://bowtielaw.wordpress.com/2013/10/02/excuse-me-pdfs-instead-of-native-files/]

o Don’t Forget to Produce Email Attachments. In Skepnek v. Roper and Twardowsky, LLC, (2014 US Dist. LEXIS 11894 [D KAN Jan. 27, 2014]) there was a contractual dispute about an attorney-fee sharing agreement between the two parties. Plaintiffs, for the second time, moved to compel the court’s discovery order to produce missing attachments to e-mails that have already been produced. Defendant’s object, mainly because Plaintiffs did not assert that e-mails should be produced originally or specify that electronic documents should be produced in native format, and to do so would make the process duplicative and burdensome. Additionally, Defendants state that it is impossible to include every attachment to the emails, but are able to produce specific attachments upon request. The Court concluded that the issue is not the format of the production, but rather that the Plaintiffs seek to compel the Defendants to produce the e-mail attachments to the e-mails already produced. Additionally, the Plaintiff’s never specify in which format the attachments should be produced, just that they be produced, pursuant to the court’s order and pursuant to RULE Rule 34(b)(2)(E)(ii). Additionally, producing documents that were ordered to be produced, is not duplicative because those documents were never actually produced, nor is it clear why Defendants can produced specific attachments, but not all of the attachments. As, legal professionals struggle with producing electronically stored information (ESI) properly,


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largely because they do not retain specialists to do so. This often gets legal professionals into trouble, elongates the litigation process, and results in avoidable costs. The duty of competency requires that lawyers hire experts to solve technical issues such as collection and production of ESI. See, Joshua Gilliland, Don’t Forget to Produce Email Attachments (Bowtielaw.wordpress.com 2/12/14). [http://bowtielaw.wordpress.com/2014/02/12/producing-

attachments/]

Ravit v Simon Props. Group, Inc., (2012 NY Misc LEXIS 6208 [NY SUP CT Feb 8, 2012]). Plaintiffs sued defendants for injuries sustained in a fall at the Roosevelt Field Mall on Long Island. Among other things, Plaintiffs requested a surveillance tape showing the fall. Defendants produced the tape in its original format (the only format in which the video exists) along with instructions on how to view the video on “windows media player,” a common media viewer. Plaintiffs contended that the format cannot be viewed, the instructions do not work, and demanded Defendants provide them with another, viewable copy. The court held that the Defendants have complied completely with the production demand by producing the video in its original format and instructions on how to view it. Absent a defective copy of the video, producing a video in the only format in which it exists along with instructions on how to view it on nearly every electronic device is sufficient compliance with the discovery process. Certain types of electronically stored information can be viewed in formats so common place, that it can be safely assumed that the party desiring to view the material has the program and software to do so successfully. Other types of electronically stored information can be more difficult to access and can result in higher costs and complicated technology requiring specialized knowledge or skill. See, Marco Ferreira, When eDiscovery Exists in Only One Format, Requesting Parties Must Make Due, (Ellblog.com 9/2/13). [http://ellblog.com/when-ediscovery-exists-in-only-one-format-requesting-parties-must-make-due/]

Defendants complied with discovery request pursuant to FRCP 34(b)(2)(E)(ii) by producing documents in a reasonably useable format. Defendants were not required to comply with FRCP 34(b)(2)(E)(i), by designating which documents were responsive to plaintiff’s requests as the documents were in a reasonably useable and fully searchable format, thereby obviating the need to comply with the statute. The Anderson Living Trust v. WPX Energy Production, LLC, (2014 WL 930869 [D NM March 6, 2014]). In Anderson Living Trust the court held that once physical documents are scanned into electronic format, they essentially become electronic discovery and thus the producing party must comply with FRCP[b][2][E][ii], which governs the form of production of electronic discovery. This holding could be problematic as physical paper is not always 100% searchable when scanned into electronic format. For example, handwriting is not yet searchable when scanned. This also leaves open the possibility dilatory tactics whereby a party could request both paper and electronic versions of the same document. Scanning


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Paper Makes the Production ESI And Not a Document, [Bow Tie Law’s Blog, 4/17/14] [http://bowtielaw.wordpress.com/2014/04/17/scanning-paper-makes-the-production-esi-and-not-a-document/]

The case of Melian Labs, Inc. v. Triology LLC, (2014 U.S. Dist. LEXIS 124343 [US DC ND Cal, September 4, 2014]) serves as a cautionary tale to any practitioner engaged in litigation. In Melian, both parties entered into a stipulation agreement which governed the form of production during the discovery process. When the requesting party was not satisfied with the way ESI was produced (7 large PDF documents), it sought relief from the court. The court held that it was bound by the terms of the stipulation and therefore FRCP §34[b] no longer governed. Accordingly, the requesting party was without remedy for the producing party’s failure to provide ESI in native format. Practitioners would be well advised to forgo e-discovery stipulations. Native files, when married with review technology allows the user to identity patterns, key players and other useful information.

This is something that printing an email as a PDF cannot come close to replicating. Don’t Stipulate to Not Follow the Form of Production Rules (Bow Tie Law’s Blog, September 11, 2014) [http://bowtielaw.wordpress.com/2014/09/11/dont-stipulate-to-not-follow-the-form-of-production-rules/]

In response to plaintiff’s discovery demand, defendant produced spreadsheets in TIFF format and employment applications in PDF and TIFF format without a load file. Plaintiff provided affidavits from their Litigation Support Manager, explaining that the discovery was unusable in the format provided as they were not capable of being searched or manipulated for analysis, nor was there any logical unitization or load file. The court held that pursuant to FRCP 34[b][1][C], the plaintiff was entitled to specify the form of production. EEOC v. SVT, LLC, 2014 US Dist LEXIS 50114 (ND Ind, April 10 2014); If You Agree to Produce Excel as Native Files, Don’t Produce Tiffs, [Bow Tie Law’s Blog, 4/22/14] [http://bowtielaw.wordpress.com/2014/04/22/if-you-agree-to-produce-excel-as-native-files-dont-produce-tiffs/]

In Stallings v. City of Johnston City, (2014 US Dist LEXIS 68566 [Southern District of Illinois, May 19, 2014]), the defendant sought discovery of the plaintiff’s Facebook posts from 2011 to present concerning her employment with the defendant. In response to the request, the plaintiff’s attorneys downloaded and printed out the entire profile – 500 pages worth – and redacted accordingly. Although the defendant took issue with the plaintiff’s redactions, ultimately the plaintiff was allowed to provide the redacted hard copy of all relevant posts from 2011 to present. In cases involving production of social media profiles, it is the best practice to hire an expert who can capture the data electronically, tag it and produce it. Doing so would avoid the burdensome tasks of manually printing and reviewing 500 pages worth of social media posts. Let’s Not Print Social Media For Productions (Bow Tie Law’s Blog, June 2, 2014), [http://bowtielaw.wordpress.com/2014/06/02/lets-not-print-

social-media-for-productions/]


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In Sexton v. Lecavalier, (2014 US Dist LEXIS 50787 [US DC SDNY Apr 11 2014]) the defendant was ordered to produce emails in native format. These emails were sent using Google’s Gmail email service and were therefore only available on Google’s servers. Defendant, under the belief that he could not produce the emails in native format, instead forwarded the emails in an attempt to comply with the subpoena. Judge Torres noted that there was no clear standard for producing documents stored in the cloud in native format. However, Judge Torres held that this did not absolve the defendant of his obligation to produce the documents in a reasonable useable format. The defendant could have preserved the relevant meta-data through an email client such as Microsoft Outlook. Judge Torres declined to impose sanctions however, stating that the defendant acted in good faith and that the production issues should have been resolved without judicial intervention. Brendan Pierson, Judge Offers Guidance on Transfers of Original Emails, (NYLJ, 4/16/14); An e-discovery blog concludes his thoughts by saying that “the custodian should not do the collection” because this would amount to self-collection, and therefore self-selection. This may result in relevant emails not being produced, and therefore the other methods described should be relied upon. See, Native File for Cloud Email, (BowTieLaw.Wordpress.com 5/8/14) [https://bowtielaw.wordpress.com/2014/05/08/native-file-for-cloud-email/]

What about your girlfriend’s computer? In a wage hour case, U.S. Senior District Judge

granted Defendants request for all ESI communications, including the Plaintiff’s girlfriend’s computer which she used to conduct a “Google” search for an attorney on behalf of one of the Plaintiffs. The computer was subject to discovery request because it was deemed relevant to the case. In addition, Plaintiffs had to hand over two other computers subject to discovery requests despite his contention that they were broken. The Court held that a computer forensic expert was to examine the computers and determine whether the information can be recovered. Plaintiffs were obligated to produce the ESI unless they could provide legal authority or factual support for their contention that it is impossible to retrieve the information from the damages computers. Plaintiffs also had to produce cellphone ESI relating to wage and hour violations, including text messages, voice memos, photographs and other information stored on a cellphone. Lozoya v. All Phase Landscape Constr., Inc., (2014 US Dist. LEXIS 7135 [US DC Colorado, Jan 21, 2014). Discovery request for specific communications must be relevant to the issue in litigation. Attorneys should be knowledgeable about the various tools that can be utilized to acquire such relevant data. With regards to “broken” computers, the court requires a forensic expert to examine the computer or an expert affidavit explaining why the ESI is not accessible thereafter an examination. Nitty Gritty Discovery Requests, BowTieLaw.com (1/29/14), [http://bowtielaw.wordpress.com/2014/01/29/nitty-gritty-discovery-requests/].

Production Requests

In Westdale Recap Props Ltd v. NP/I&G Wakefield Commons, LLC, (2013 US Dist LEXIS 138537 [EDNC Sept. 26, 2013]). The plaintiffs sued for, among other things, fraud, civil conspiracy, unfair and deceptive trade practices, costs and attorneys’ fees. Defendants answered


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and filed general denials to the allegations. Plaintiff gave 71 production requests, and defendants gave the same response to 70 of the requests stating a series of objections and that subject to the variations objections only relevant and non-privileged documents would be produces. Seventy of the requests asked that the ESI be produced in its “native format” with metadata since metadata is integral to the outcome of this case. The defendants did not address this in their response and produced the documents in PDF format or in the electronic format that maintained by them in their ordinary course of business. The court held that the plaintiffs had not shown that the metadata would be destroyed in PDF format or demonstrates an adequate need to have everything produced in the native format even though FRCP allows it.

When a document request is made with a specific form of production the producing party must either produce the materials in the requested form or object. Grounds for proper production include either undue hardship or expense. This can lead to problems during discovery, however, where a requested document cannot be produced in a reasonably readable format, such as when a party requests a document in its native format, but the document, unable to be exported in its native form, is produced as a PDF. This was the case in Peterson v. Matlock (2014 US Dist LEXIS 152994 [US DC NJ, Oct 10, 2014]). The case involved an inmate who was making claims against several officers for injuries he sustained while in the custody of the New Jersey Department of Corrections. Plaintiff requested his medical records in their native format and the defendant produced the records in PDF format. Plaintiff moved to compel the production in the requested format and the defense objected, arguing that to produce the records in their native format “would be an inordinate drain of time and manpower” and that staff would be required to “sort through each page of the medical record and make the determination as to which category it fits into.” The court weighed the burden on the defense to produce the records as requested against the plaintiff’s interest in receiving native format records. The records that were already produced in their PDF form were not said to be missing any relevant information, but merely that it was “difficult to navigate and interpret.” Additionally, the defendant, as an end user of the program Centricity, could not modify the manner in which the records were stored by the software. For these reasons the Court denied the Plaintiff’s motion to compel. See, Producing as PDFs When Native Files Are Not in a Reasonably Useable Form, (BowTieLaw.Wordpress.com 11/10/14). [https://bowtielaw.wordpress.com/tag/native-file-production/]

A party requesting e-discovery should think carefully and thoughtfully about how they

state the form of production. In Dixon v. Experian Info. Solutions, Inc., 2014 US Dist LEXIS 86268 (ND Ind. June 25, 2014). the plaintiff requested information from the defendant’s proprietary database. The plaintiff, Edward Dixon, alleged that the defendant, Experian, a credit reporting agency, reported inaccurate information in his credit report about his Green Tree Servicing, LLC mortgage account in violate of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et. seq. The mortgage account was held by GMAC Mortgage until February 2013, then immediately transferred to Green Tree. The plaintiff admitted that his GMAC Mortgage account


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was discharged in bankruptcy but argued that his payment history with Green Tree should have been reported by Experian because he continued to make mortgage payments post-bankruptcy. The plaintiff served discovery requests on the defendant, including seventy Requests for Production and forty topics for Experian’s Rule 30(b)(6) corporate witness. The plaintiff was very thorough in their request for production. For example, they defined “native file” as generally meaning “the original format of a type of electronically stored information in which such information was embodied at the time it was created by the software application used to create it.” The defendant argues that the entire case turns on a single question – whether they have a legal obligation to report the payment history of an account that was discharged in bankruptcy. The issue of Dixon lies in the fact that the defendant produced the ESI as unsearchable PDF’s. The court noted that the defendant did not object to the form of production and held that the defendant waived any objections under Federal Rule of Civil Procedure 34(b)(1)(C). The plaintiff argued that the defendant producing ESI, which was fully searchable in electronic format produced as static images, severely restricted his ability to search or analyze the discovery. Furthermore, the plaintiff argued that the defendant maintained “consumer disclosures” in a File One database, where the defendant could run a query that would generate a report with the query results. The plaintiff argued that the data which generated the reports was in electronic format, and therefore should be produced natively. The defendant noted that they had produced the information in litigation as a “snapshot” of the credit information at the time of the request and an “Admin Report” which contained changes to the credit file over time. Furthermore, the defendant argued that producing the data as native files would be unfairly prejudicial because the data would be confusing to a layperson due to the coding and could confuse the jury at trial. The court rejected the defense argument and ordered the production of the consumer disclosures in native format. See, Joshua Gilliland, Really Thinking Through the Form of Production, (Everlaw 11/20/14) [http://blog.everlaw.com/2014/11/20/really-thinking-form-production/]

In another case, a defendant issued false earnings statements and a second investigation commenced once the defendant announced it issued a restatement correcting the errors for yet a

third time. The judge denied the plaintiffs’ request for reports that would allow a comparison of the documents produced in both of the investigations on the basis of plaintiffs’ failure to proffer an adequate factual basis for such requests. Thereafter, the plaintiffs submitted 18 e-mails from the defendant’s custodians that were produced by a third-party to demonstrate that the defendant’s production was “significantly deficient.” The Federal Rules of Civil Procedure requires the discovery of non-privileged matters as long as it’s “reasonably calculated to lead to the discovery of admissible evidence.” The court denied the plaintiffs’ production of the search report because the Producing Party had produced “hundreds of thousands” of documents, meeting the proportionality requirement under the Federal Rules of Civil Procedure. The plaintiffs’ remedy proposition would not resolve any production issues. Freedman v. Weatherford Int’l, (2014 US Dist LEXIS 133950 [US DC SDNY, Sept 12, 2014]). The judge’s opinion emphasized that if third-


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party e-mails demonstrate deficiency of production, a proportional remedy must be offered. Challenging production adequacy requires proportionality: one must first show that production is inadequate, then demonstrate the remedy is sensible. “The remedy has to be proportional to the problem.” Ultimately, the effort sought must contribute value to the case. 18 Missing Email Messages is not like 18 Minutes of Missing Watergate Tape, (Bowtielaw.com, 9/30/24) [http://bowtielaw.wordpress.com/2014/09/30/18-missing-email-messages-is-not-like-18-minutes-of-missing-watergate-tape/];

H. Christopher Boehning and Daniel J. Toal, Meta-Discovery Denied: Decision Limits Scrutiny of Methods, (NYLJ 2/3/15)

See also, Stinson v. City of New York, 2015 U.S. Dist. LEXIS 99797 [US DC SDNY, July 23, 2015], where a carefully targeted request for ESI resulted in court granting discovery request.

Not obligated to produce the data maintained by the e-discovery vendor. In Ablan v. Bank of Am. Corp., 2014 U.S. Dist. LEXIS 164751 [Dist Ct ND Illinois November 24, 2014]), the defendant alleged that the plaintiff committed two discovery violations. Besides failing to produce documents in a timely manner, the defendant alleged the plaintiff also failed to produce 350,000 relevant documents that were in the possession of Protek, a discovery vendor that the plaintiff retained to obtain relevant email communications from a third party in a related state lawsuit. The court held that while the plaintiff’s retained Protek during the state litigation, the nature of the relationship failed to demonstrate that the plaintiff had legal right to obtain the documents in question. They documents were stored on an FTP server which plaintiff had access to during that litigation and there was no evidence that plaintiff continued to have access. Instead, defendant should have subpoenaed the document itself.

Facebook and Service of Process For the first time a judge has ruled that service by Facebook private message is permissible as the sole method of service. In Baidoo v. Blood-Dzraku, Baidoo (2015 NY Misc LEXIS 977 [Sup Ct NY Co, Mar 27, 2015]) a divorce proceeding in New York County, Justice Matthew Cooper found that this method of service was “reasonably calculated to apprise defendant that he is being sued for divorce.” Previous court decisions had always held that Facebook was a permissible method of service only in conjunction with another method of service such as mailing to the last known address or publication. Baidoo met every step necessary and persuaded Judge Cooper that there was no other reasonable means of service. No other method under CPLR 308, including hand delivery, nail and mail, and substitute service, was found to be adequate. Baidoo had demonstrated that the defendant had no fixed address or place of employment, which eliminated nail and mail and substitute service, which both require that there be a place or a person that service can be affected upon. The court, therefore, found that alternative service would be permissible under CPLR 308(5), which was properly requested in plaintiff’s ex parte application.


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Under this provision the court will grant permission to an alternative, non-statutory method of service where all other statutory methods would prove “impracticable.” Judge Cooper goes on to consider the adequacy of Facebook service, namely whether there would be a good chance the defendant would receive the summons this way. The concerns the court raised included whether the Facebook account actually belonged to the defendant and was not a fake or impostor account, whether the defendant is actively on Facebook so that he might not miss the time period to respond to the summons, and finally whether a backup means of service was required based on the circumstances. The first two concerns were adequately answered by the plaintiff, having shown several exchanges with the defendant through that account, which demonstrates that it is indeed his account and that he is actively in logging on. Furthermore, the plaintiff and her attorney had a phone number for the defendant so they would be able to alter the defendant at the very least to the message in his Facebook inbox. The court then moved on to the possible requirement of backup service. The third concern required more extensive analysis on the court’s part. Some skepticism of the effectiveness of service by publication was voiced by the court in its analysis. Judge Cooper elaborated on the issue, stating “The problem, however, with publication service is that it is almost guaranteed not to provide a defendant with notice of the action for divorce, or any other law suit for that matter.” In divorce cases plaintiff’s often are granted permission to publish the summons in the New York Law Journal or other “Papers of Record.” The court didn’t even think publication in the New York Post or Daily News would be adequate, both costing up to $1,000 to publish and neither guaranteed to notify the defendant. For these reasons the court, contravening traditional case law, found that backup service by publication in conjunction with service by Facebook message would not be necessary and allowed the plaintiff to proceed solely on service by Facebook message. Could this case be the end of service by publication (which keeps some newspapers alive), even though it is a statutorily permitted method of service. It is a costly method of service and, as Judge Cooper points out, there is almost no guarantee that the party being served will become aware that they are a party to a suit. With this decision in this case plaintiff’s will now, with court permission, be able to serve adversaries via Facebook message where the other party is not reachable by any other method, and they will not be required to combine service by Facebook with another method. It should be clear to courts that if a party is not reachable by home or work address, by email, or outright refuses hand delivery then service by publication must surely be a futile method. See, Barba Ross, Judge says Brooklyn woman can use Facebook to serve divorce papers, (NYDailyNews.com 4/6/15) [http://www.nydailynews.com/new-

york/brooklyn/exclusive-woman-facebook-serve-divorce-papers-article-1.2174577]; Andrew Keshner, Judge Authorizes Service by Facebook in Divorce, (NYLJ 4/7/15); Charisma L. Troiano, Divorce via Facebook: NY Judge Opens Door for Legal Papers to be Served Through Social Media, (Daily Bulletin 4/8/15) Some Other Cases of Note:

Fortunato v Chase Bank USA (No 11 Civ 6608 JFK, 2012 US Dist LEXIS 80594 [USDC SDNY, Jun 7, 2012)). Plaintiff sued Chase alleging that another person had opened a credit card account in her name and incurred debt. Chase then initiated collection proceedings against plaintiff by completing service of process at an address in Carmel, NY. The bank obtained a default judgment and recovered the full amount of the debt from garnishing


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plaintiff's wages. The plaintiff alleged that she never lived at the address where Chase attempted to serve notice. During the suit, Chase impleaded the plaintiff's estranged daughter alleging that she opened the credit card account but listed her home address in Carmel, NY. Chase's process server made 5 attempts to serve plaintiff's daughter at her daughter's address however there were "no obvious signs that the premises were being regularly accessed." The bank then hired an investigator to locate the daughter but she was unable to do so. However, the investigator found four potential home addresses of the daughter and a Facebook profile. Chase then asked the court to authorize service of process by email, Facebook message, publication, and delivery to the plaintiff. Where service according to traditional methods proves impractical, service may be made "in such manner as the court, upon motion without notice, directs." The court noted that service of process through Facebook was unorthodox and that Chase had not set forth any facts that would give a degree of certainty that the Facebook profile was actually maintained by the daughter. Instead, the court approved service by publication "in two newspapers, at least one in the English language, designated in the order as most likely to give notice to the person to be served, for a specified times, at least once in each of four successive weeks." The court reasoned that although the purported Facebook page listed her location as Hastings, NY, that location was at least 50 miles away from any of the four physical addresses the investigator found. Thus, the court ordered the publication to be in local newspapers in the four addresses the investigator found as well as in Hastings. (See also, Shari Claire Lewis, Courts Confront the Question of Service by Facebook, [NYLJ 12/18/12])

FTC v. PCCare247 Inc., (2013 WL 841037 [USDC SDNY March 7, 2013]) In this case, the FTC filed suit against a number of Indian defendants alleging they operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers. After some difficulty in effecting service of the summons and complaint on the defendants in India, the FTC asked the court for leave to serve the remainder of the documents in the case via email and Facebook. The court granted the motion. The court held that the Hague Service Convention allows for service of process through alternative means such as postal channels provided that the destination state does not object to those means. India has objected to the means listed in Article 10 of the convention, but did not object to service by email or Facebook. The court did note that service by Facebook was merely a backup to the service by email.

A foreign defendant, a website operator, did not have a valid registered address listed on their website. The plaintiffs filed a motion for substitute service and showed that the defendant’s email address was listed as a contact information on the website’s Facebook account. Service was deemed complete when plaintiffs filed a return of service that showed that both the email and Facebook messages had been sent. (See, Woodward v. Chetvertakov [Dist Ct ED Mich, Case No. 13-cv-11943, Aug 7, 2013]; Marlisse Silver Sweeney, Marlisse Silver Sweeney, Do You Want to Be Facebook Friends or Do You Want to Serve Me?, Law Technology News Law.com 10/25/13).


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[http://www.law.com/jsp/lawtechnologynews/PubArticlefriendlyLTN.jsp?Id=1382624067];

When a man was unable to track down his son’s mother to modify his child support, a Staten Island Family Court Support Magistrate allowed him to send a digital copy of the summons and petition to her Facebook account. In Matter of Noel v. Maria (F-000787-13/14B [Richmond Co., Fam Ct. Sep 12, 2014] (NYLJ 9/18/14)), the court held that Facebook, the social networking site, is a sufficient substituted means of service. Petitioner filed an action seeking to modify his child support after the subject child became emancipated. The petitioner presented an affidavit as proof that he could not serve the Respondent and described other ways he tried to locate her to effectuate such service, such as sending text messages, leaving voicemails, and sending text messages to the subject child. The petitioner stated he was aware that the respondent maintained an active Facebook account. The court authorized substituted service to the respondent’s Facebook

because other service was impracticable; the petitioner exercised diligent efforts to locate the respondent but had been unable to obtain a known address for service. Andrew Keshner, Facebook Service Allowed in Support Change Action, (NYLJ 9/17/14); Alton L. Abramowitz, Service By Facebook: ‘Like’ or Dislike? (NYLJ, 10/29/14)

o But see, In Re Adoption Of K.P.M.A., (2014 OK 85, 2014 Okla LEXIS 109, [Sct of Oklahoma, Oct 14 2014]) Under Oklahoma law, a natural father to a child born out of wedlock has a right to be notified that such a child exists in an effort for the father to have a relationship with his child. Oklahoma’s highest court ruled that a Facebook message alone does not constitute as notification because it is unreliable and “it is not reasonably certain to inform those affected.” Jacob Gershman, Court: Facebook Not a Valid Way for Mom to Tell Dad She’s Pregnant, The Wall Street Journal (10/17/14), [http://blogs.wsj.com/law/2014/10/17/court-facebook-not-a-valid-way-for-mom-to-tell-dad-

shes-pregnant/].

See Generally:

o Evan Brown, Court Lets FTC Serve Litigation Documents by Facebook, (Internetcases 3/11/13) [http://blog.internetcases.com/2013/03/11/service-process-facebook/];

o Philip Cohen, Service of Process Through Social Media, (Natlawreview.com 3/23/13). [http://www.natlawreview.com/article/service-process-through-social-media]

o Madeleine Hensler, Federal Court in Manhattan "Likes" Service of Process via Facebook, (JDSupra.com 4/10/13). [http://www.jdsupra.com/legalnews/federal-court-in-manhattan-likes-

servi-97756/] o Joseph Rich, Service by Social Media: The Step in a New Way to Serve Foreign

Defendants, (Jdsupra.com, 5/16/13). [http://jdsupra.com/legalnews/service-by-social-media-the-first-step-

15330] o Michael Lynch, You've Been 'Poked'! 'PCCare247' and Service of Process by

Social Media, (NYLJ, 5/23/13).


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Skype Depositions In a case involving farmworker rights issues, the judge reminded the parties’ attorneys to “stop and think” when dealing with discovery disputes. The duty to “stop and think” when dealing with discovery disputes is imposed by RULE Rule 26(g) and is an “affirmative duty to engage in pretrial discovery in a responsible manner…and…to stop and think about the legitimacy of a discovery request….”In the case before the court, three of the plaintiffs were unable to travel to Georgia from Mexico, to be deposed. The Court, instructed the parties’ use “Skype” to conduct the depositions since Skype is a tool used to facilitate many interactions such as visitation orders, marriages, etc…when traveling is cost prohibitive. While Skype is a perfectly viable and acceptable tool to depose people, other services such as remote video deposition services might be better because such services have applications designed specifically for remote depositions and understand many of the other requirements for remote depositions. See, Joshua Gilliland, “Stop and Think” About Skype for Depositions? (Bowtielaw.wordpress.com 2/3/14)

[http://bowtielaw.wordpress.com/2014/02/03/another-skyping-judge/]

Predictive Coding to Sort Discovery- (a.k.a. [even if not correct] Technology Assisted

Review [TAR]) Predictive coding is an aspect of “Technology-Assisted Review” (TAR), an effort to make e-discovery more effective and efficient. Predictive coding is a semi-automated process by which the algorithms “learn” which documents are relevant through interacting with a human reviewer.

“Predictive coding” is one of the available TAR platforms. It refers to a computer software that can organize documents consistent with human judgment. It beings with an ‘expert’ coder who reviews and codes a small set of documents then uses them to ‘teach’ the computer how to code and then a project manager tests the results. Some benefits of predictive coding includes an accurate discovery of more responsive documents, it prioritizes documents for human review, and it eliminates irrelevant documents to save time. However, the results depend on a variety of decisions concerning workflow design and after the machine code stabilizes, there are more decisions to be made. TAR is continuously evolving and can be used for other purposes such as confidentiality classification, identifying privileged material, and for issue coding. It is predicted that judges will provide more detailed discovery orders for parties who want to use TAR and this can encourage more cooperation between the parties to ultimately lead to an efficient discovery process. Jeane A. Thomas & Elizabeth A. Figueira, Technology-Assisted Review, Data Law Trends & Developments: E-Discovery, Privacy, Cyber security & Information Governance (6/14).

A better term than TAR/Predictive Coding, as suggested by some experts, is “Prioritized Review.”


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As judicial support for the use of TAR increases, basic standards and best practices for its use and application would be a useful tool to ensure that TAR is employed responsibly. Such standards should include the importance of proportionality, specific goals, budgetary constraints, deadlines, and workflow. While details of TAR methodology will inevitably vary on a case-to-case basis, performance metrics and statistical principles should be followed consistently. Some examples include information retrieval performance metrics and random sampling. Information retrieval performance metrics includes two statistical measures commonly used to assess TAR results: precision and recall. Precision measures accuracy of the TAR process and recall measures completeness of the TAR process. Both precision and recall are valuable tools to assess how well TAR works, but certain cases or issues might make one of the statistical measures more useful than the other, and both metrics should be used with information about the measures’ associated confidence levels and margin of error. Random sampling is an essential tool for testing TAR and an excellent tool in training because both valid precision and recall metrics depend on sound random sampling. While there are many effective ways to use random sampling, ensuring that the random sample is fully representative of the entire document population is essential to the success of TAR. In order to test successfully, new random samples should be used to track TAR’s performance. It is also important to remember that results drawn during testing are only true for that random sample, and building a single TAR model to apply to each data set risks generating degraded outcomes for later sets. It is not prudent to develop strict standards and guides for TAR, but to develop a basic set of standards that affords the flexibility that TAR requires to be effective. See, Gabriela Baron and Amanda Jones, Handle Technology-Assisted Review With Care, (Law.com 8/27/2013)

[http://www.lawtechnologynews.com/id=1202617131898/Handle-Technology-Assisted-Review-With-Care]

TAR can save time and money in complex legal matters. It is so effective that even when utilized late in the game, it can still prove effective in streamlining discovery. For example, assuming a typical manual review yield of 50 records per hour, it would take 316 hours to review a case involving 15,800 records. Assuming a rate of $250 per hour, the entire cost would be $79,000. TAR could do the same review for $10,000. Be cautioned however that switching review methods may not necessarily be permitted and may require judicial intervention. Therefore it is best to implement TAR from the onset of discovery. Steven M. Amundson and Mark Noel, When Considering TAR, It’s Never Too Late (NYLJ, 3/16/15)

Successful challenges to production through predictive coding often take the form of questioning whether the key documents have been produced and whether documents have been produced from all requested categories. Visual analytics provide a tool to ensure that these requirements. Visual analytics take large, complex data sets and translate them into a graphical interface. This allows for the user to review the overall content of the documents without viewing each individual document. The user then has the option to drill down on any areas of interest - all


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in a visual format. See, David Grant, Seeing is Believing: Using Visual Analytics to Take Predictive Coding Out of the Black Box (Law Technology News, August 2013).

Launched in May 2005, EDRM was created to address the lack of standards and guidelines in the e-discovery market. EDRM published the Electronic Discovery Reference Model in January 2006, followed by additional resources such as IGRM, CARRM and the Talent Task Matrix. Since its launch, EDRM has comprised more than 260 organizations, including 170 service and software providers, 63 law firms, three industry groups and 23 corporations involved with e-discovery and information governance. Information Governance: Getting your electronic house in order to mitigate risk and expense throughout the entire process. Identification: Locating potential sources of ESI. Determining the scope, breadth and depth of that ESI. Preservation: Protect the ESI from alteration, deletion or destruction. Collection: Gathering the ESI for further use and review.


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Processing: Reducing the volume of ESI. Converting the ESI to forms that are suitable for review and analysis. Review: Evaluating the ESI for relevance and privilege. Analysis: Evaluating the ESI for content and context. Evaluating key patterns, topics, people or discussions. Production: Delivering the ESI in appropriate forms. Presentation: Displaying the ESI at depositions, hearing and trials. Validation of existing facts and positions. Use in persuading your audience. [http://www.edrm.net/]

The proliferation of e-discovery has completely changed the cost of doing business and how businesses across multiple industries approach litigation. Due to the sometimes overwhelming amount of e-discovery, rules have been established that require cooperation during the early stages of litigation in conjunction with severe sanctions for those fail to preserve or produce discovery. Therefore, best practices require that every company have a cohesive e-discovery strategy from start to finish. To that end, attorneys must be intimately familiar with e-discovery; companies need employees and sometimes entire departments with expertise in the subject matter. Unlike the discovery of old, e-discovery is a rapidly changing field that requires legal practitioners and attorneys to constantly stay on top of the newest trends and regulations. Paige Kohn, E-Data Explosion in Business Law (Columbus CEO, June 2014) [http://www.columbusceo.com/content/stories/2014/06/08/e-data-explosion.html]

Da Silva Moore v Publicis Groupe, 2012 US Dist LEXIS 23350 (USDC SDNY 2/24/12)

In this gender discrimination case, the plaintiffs objected to defendant's use of computer assisted review to search more than 3 million documents involved in discovery. Though both parties agreed to use computer assisted review, they disagreed as to the methodology. The court held that "computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases" but that it does not mean that it should be used in all cases and further, that the methodology used in this case should not apply to all future cases that use predictive coding to sort discovery. See also, Cecil Lynn III, New York, New York: Manhattan-based Jurists Are the First to Enthusiastically Embrace Predictive Coding in Federal and State Courts, (Law Technology News pg 60, Feb. 2013); Monica Bay, Judge Peck's Refusal to Recuse in 'Da Silva Moore' Remains After Appeal, (Law Technology News 4/15/13) [http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202590636102]

o Note: The Decision as to whether Judge Peck would have to recuse himself for alleged conflicts of interest was appealed. However, the US Court of Appeals found that the Petitioners did not "clearly and indisputably demonstrate that [Judge Peck]


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abused [his] discretion in denying the recusal motion. The United States Supreme Court also denied the petition to recuse Judge Peck in Monique Da Silva Moore, et al, v. Publicis Group SA, et al. 1 Civ. 1279, (Monica Bay, Supreme Court Denies Petition to Recuse Judge Andrew Peck in ‘Da Silva Moore’, [Law.com 10/7/13])

[http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202622484522&rss=rss_ltn_news]

o In Monique Da Silva Moore, et al. v. Publicis Groupe SA and MSL Group, 11 Civ. 1279, Judge Andrew Peck has issued a “Report and Recommendation” to District Judge Andrew Carter, arguing that Carter should deny plaintiff’s motion to file a third amended complaint. See, Monica Bay, ‘Da Silva Moore’: Judge Peck Urges Rejection of 3rd Complaint Re-do, (Law.com 8/28/13). [http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202617287197&Da_Silva_Moore_Judge_Peck_Urg

es_Rejection_of_3rd_Complaint_Redo]

Kleen Products LLC v. Packaging Corp. of Am., (2012 US Dist LEXIS 139632 [USDC

ND Ill. 2012]). In this antitrust case, alleging anti-competitive price-fixing behaviors by seven cardboard box manufacturers, the defendant's used "traditional" search methods utilizing complex Boolean search strings. The defendant's validation process estimated that 5% of the documents missed by the TAR searches were responsive. In a sample of 660 purportedly non-responsive documents, 27 documents were identified as responsive. Plaintiffs correctly argued that the validation process did not measure recall and thus, did not provide any information about what percentage of the responsive documents were identified by the searches. Further, the plaintiff sough to compel the use of TAR with a valid recall estimate. However, the plaintiff withdrew its motion to compel after two days of evidentiary hearings and many "meet and confer" conferences.

In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (3:12- MDL-2391).

The District Court for the Northern District of Indiana authorized the use of predictive coding by the defendant even though the defendant had proceeded with eDiscovery before the cases were centralized and ignored the plaintiff's demand to not begin document production. The defendant used a combination of electronic search functions to identify relevant documents. Their Keyword/de-duplication approach identified 16% of the original 19.5million as relevant discovery material. The defendant also invited the plaintiff to suggest additional search terms and offered to produce the rest of the non-privileged documents from the post-keyword search so that the plaintiffs could verify the documents relevancy. The plaintiff's sought a return to "square one" in discovery, arguing that they were not under discovery orders yet. The court found for the defendant, holding that the likely benefits of the discovery proposed by the plaintiff did not equal or outweigh the additional burden and additional expense to defendant, but did order an additional meet and confer on additional reasonable targeted search terms. (See Monica Bay, Indiana Federal Court OKs Jump-Start on Predictive Coding, (Law.com4/22/13) [http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202596989784].


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EORHB v. HOA Holdings, (Civ. Action No. 7409-VCL, [Delaware Chancery Court Oct. 15, 2012].) This case was a complex multimillion dollar commercial indemnity dispute involving the sale of Hooters. The court openly suggested that the parties involved would benefit from the use of predictive coding. Specifically, the court suggested that the two parties use a single discovery provider that could search and warehouse the documents. If the parties could not decide on a provider jointly, then they were to submit a list of providers to the court so that the court could choose for them. The court noted that indemnification claims can generate a huge amount of documents, and that since the case is not expedited, all parties would benefit from the use of TAR.

[http://pdfserver.amlaw.com/legaltechnology/predictive_coding_order_delaware.pdf]

Global Aerospace Inc. et al. v. Landow Aviation, L.P., (2012 Va Cir Lexis 50 [VA Cir, Apr 23, 2012]). Court allowed defendants to proceed with the use of predictive coding for purposes of the processing and production of electronically stored information. Processing was to be completed in sixty days, and production was to follow as soon as practicable and more than sixty days. This order was without prejudice to the receiving party as to the completeness of the production or the ongoing use of predictive coding

In Re: Actos (Pioglitazone) Prods. Liab. Litig., (2012 US Dist LEXIS 187519 [USDC WD LA July 27, 2012]) This order memorialized the comprehensive agreement between counsel concerning the production of electronically stored information. Counsel had already identified the potential sources of information and the custodians who were likely to possess relevant information. Further, counsel agreed upon the methodology of the review of documents and information, including the vendors and software to be used for predictive coding of the document sets. They also agreed that they should establish a panel of three "experts" nominated by each side to review a sample population of documents that would train the software for its review of the documents. All documents above an agreed upon relevance score were to be manually reviewed by the Defendant before being produced.

A judge of the United States Tax Court was recently scratching his head after a petitioner asked him permission to use predictive coding as a means in producing requested documents in what apparently was the first opinion from the Tax Court regarding discovery of ESI. In, Dynamo Holdings LP v. Comm’r, (US Tax Ct LEXIS 40 Sept 17, 2014) the requesting party sought information stored on tapes and the producing party contended that it would take months of culling and $450,000 due to the need to privileged and confidential information. In response to this the requesting party asked that the producing party simply produce the tapes under the protection of a clawback agreement and allow the requesting party to sort the information itself. This led to the producing party requesting permission to use predictive coding from the court in lieu of simply handing over the tapes with the relevant information. As Judge Buch states in his opinion “In this respect, we note that this request is somewhat unusual…And although it is a proper role of


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the Court to supervise the discovery process and intervene when it is abused by the parties, the Court is not normally in the business of dictating to parties the process that they should use when responding to discovery.” Requesting party argued that predictive coding should not be relied on because it’s an “unproven technology.” The court did not buy that argument, nor was the court persuaded by the requesting party’s fears that this would result in an unresponsive discovery from the producing party. In such an event, according to the court, the requesting party could just file a motion to compel. Te court found that the use of predictive coding to be a “happy medium” between the competing interests involved. Predictive coding is an inexpensive, efficient way to eliminate privileged and confidential materials from those that are relevant to the discovery request. Commentators suggests three takeaways in reflecting on Dynamo Holdings. First, clients should take stock of their ESI. Knowing where and how information is stored may better help a client down the line in analyzing what might need to be produced and how to sort through the information needing to be produced. Second, clients should delegate internal controls for ESI to a single, responsible individual who can interface with outside counsel. And third, clients should consider investing in a system that would make iterative ESI collection easier, faster, and more efficient. See, Yodi Hailemariam, Andrew R. Robinson, Joshua Rogaczewski, & Kevin Spencer, Tax Court Sanctions Use of Predictive Coding During ESI Discovery, (JDSupra.com 9/25/14) [http://www.jdsupra.com/legalnews/tax-court-sanctions-use-of-predictive-

co-61116/] See also, Even a Judge Questioned Why Ask for Permission to Use Predictive Coding, (BowTieLaw.Wordpress.com 9/18/14) [https://bowtielaw.wordpress.com/2014/09/18/even-a-judged-

questioned-why-ask-for-permission-to-use-predictive-coding/]

Case Example that Illustrates a “Usual” Scenario. FHFA v. JP Morgan, et al was a case (found by the great people of e-discovery.com) regarding a predictive coding project that appears to be successful so far. This case is between the Federal Housing Finance Authority and JP Morgan Chase and almost every other major international bank. Given that most of the motions, rulings, and orders have been ore tenus [verbal for the non-Latin buffs], it makes sense that this hasn’t been sensationalized or followed. JPMC wanted to use predictive coding but FHFA would only agree to predictive coding if JPMC agreed to review each and every document manually, which of course, will result in timely and costly delays in litigation. JPMC further contended that the use of TAR would expedite document review and TAR has been approved for use on comparable volumes of material. FHFA contended that the predictive coding would narrow the use of search terms in an already narrow set of documents without attorney review, that the predictive coding program would take a great deal of time, and that JPMC failed to provide the Court with details on how the predictive coding should be used, the methodology or computer program that would be used to determine responsiveness, or any other safeguards that would ensure that responsive documents are not excluded by the computer model.


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Judge Denise Cote ordered in a July 24, 2012 hearing that predictive coding should be used in a case of this magnitude because if the program is designed correctly, it would likely be more reliable and cost effective than manual review. She premised her decision on the Da Silva Moore case and urged the two parties to meet and cooperate with one another and experts to develop the program in order to make it as efficient and useful as possible. The case also involved creating the correct methodology for creating the seed set, how it would be pulled together, and how many documents should be in a seed set, etc…Over time, it seems that most of these matters were resolved and many accommodations were made. At the July 31, 2012 hearing, the parties made clear how complicated and sometimes difficult the negotiations were, given the difficulty of implementing new technology in the discovery process without tried and true guidelines.

At a later hearing on February 14, 2014 the parties discussed key documents that were missed in the predictive coding production by JPMC. However, the fault seemed to stem from a simple mistake. The judge again, understanding, encouraging, and eager to make TAR mainstream, encouraged cooperation and continued development of predictive coding. The Moral of the Story: Overall, successful discovery depends on cooperative, honest, and hardworking attorneys. As technology improves and attorneys develop technological skills necessary to navigate and use it properly, discovery will become easier, quicker, and more cost effective. See, Ralph Losey, IT-Lex Discovers a Previously Unknown Predictive Coding Case: “FHFA v. JP Morgan, et al” (e-discoveryteam.com 3/2/2014). [http://e-discoveryteam.com/2014/03/02/it-lex-discovers-a-previously-unknown-predictive-coding-case-fhfa-v-jp-morgan-et-al/]

To further illustrate this, let’s look at the ExxonMobil case. The plaintiff sought an order compelling the defendants to produce various long overdue documents. Discovery requests were served in November 2013 and a one-month extension to respond terminated January 24, 2014. Because the defendants had up to 16 suits pending and were overburdened with voluminous amounts of documents, the defendants requested to use a predictive coding method to speed up the process. The United Stated did not agree and the defendants then estimated that with 50 attorneys devoted to reviewing documents, the production process could not be completed until June 2014 but at best, review and production would be finished by August 2014. The United States challenged the defendants’ time estimation and added that defendants failed to raise concerns about the discovery length when they entered into an Agreed Scheduling Order in October 2013. Nonetheless, the court ordered defendants to complete their review and production by July 10, 214, absent good cause. United States v. ExxonMobil Pipelines Co., (2014 US Dist LEXIS 81607 [US DC ED of Ark., Jun 9, 2014]). Discovery is essential to civil litigation but reviewing documents can be a long and tedious process, especially if attorneys are unaware of the information


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they need to review and if they fail to maximize efficiency. Document production raises the issue as to whether or not the production is adequate. Keep in mind of the benefits of discovery and do not get sidetracked with a dispute over what technology can be used for discovery. See, Stuck in the Predictive Coding Pipeline, Bow Tie Law’s Blog (6/25/14) [http://bowtielaw.wordpress.com/2014/06/25/stuck-

in-the-predictive-coding-pipeline/]. Some courts have taken to allowing TAR in their orders. The Case Management Order in Green v. Am. Modern Home Ins. Co., states the following on Technology Assisted Review: “Technology Assisted Review in Lieu of Search Terms. In lieu of identifying responsive ESI using the search terms and custodians/electronic systems as described in Sections II.C & II.D above, a party may use a technology assisted review platform to identify potentially relevant documents and ESI.” Green v. Am. Modern Home Ins. Co., (2014 US Dist LEXIS 165956, 4 [USDC WD Ark. Nov 24, 2014]).

TAR2.0. As TAR gets smarter (and with competition cheaper) it may become less a less an issue, and more the norm. Sean Doherty, Is Tar 2 More, Better? (Legaltech News, June 2015)

Costs of TAR – A Logical Approach

In Gabriel Technologies Corp. v. Qualcomm Inc., (2013 US Dist Lexis 14105 (USDC SD Cal. Feb 1, 2013) the court opened the door for awarding the costs of TAR to a prevailing party. Here, the court awarded summary judgment to the defendants on all of their claims relating to misappropriation of trade secrets and patent infringement, finding that the plaintiffs should have been aware of the "obvious" lack of supporting evidence. The court found this case to be exceptional within the meaning of 35 USC 285, which allows the award of attorney fees to the prevailing party in patent cases. Thus, the court granted fees in excess of $12.4 million to the defendants. More than $2.8 million was awarded as "fees associated with a document review algorithm" used to sort the 12 million documents. TAR reduced the overall fees and attorney hours required. Therefore, the Court found the defendant's decision to utilize TAR as reasonable under the circumstances. The defendants were also awarded $400,000 for a third party's document review services. The court found this charge to be reasonable as had outside counsel performed this document review, the costs would've been exponentially higher.

Discovery of the Seed Sets

Over the past two years, predictive coding has raised significant issues such as how protections afforded by work-product doctrine will translate to use of technology in the discovery process. As the algorithms “learn” which documents are relevant through interacting with a human reviewer the reviewer codes a “seed set” of documents. This is done by noting which documents are responsive or irresponsive to certain issues or search terms. The most effective way to do this is to include “key” documents, or documents that are especially relevant to the specific issue at hand, or to the overall issue. The algorithm then evaluates the properties of the documents in this “seed set” and is able to classify the other documents in the set of material, without the need of a human reviewer. Human reviewers continue to review the documents classified by the algorithm


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and continue to develop and refine the seed sets to develop classifications, which are then confirmed or rejected by the human reviewer. This essentially trains the system.

Courts have expressed a general acceptance of the use of predictive coding as a tool in managing e-discovery, however, more recent and complicated conflicts have emerged. Certain decisions have suggested that the seed sets used to train the program are discoverable, but some courts still state that documents that are irrelevant to the case at hand are not discoverable because they are outside the scope of discovery and may encroach on work-product protections. Judicially imposed limits on seed set documents are absolutely necessary to embolden attorneys to use new technological tools to make discovery easier and less expensive. If courts allow seed sets to be discoverable, it would permit discovery of irrelevant documents and “key” documents, both of which are not discoverable and essentially undermine the overall importance of the work-product doctrine that all attorneys and their clients depend on to be creative and capable advocates.

See, H. Christopher Boehning and Daniel J. Toal, ‘Seed Set’ Documents Should Not Be Discoverable, (NYLJ 2/4/14).

In In re Biomet M2a Magnum Hip Implant Prods. Liab. Litig., (2013 US Dist LEXIS 172570, at *3 (USDC D. Ind. 2013) Judge Robert Miller, held that “Biomet did not need to identify its seed set, but the “unexplained lack of cooperation in discovery can lead a court to question why the uncooperative party is hiding something, and such questions can affect the exercise of discretion.” (Biomet, at *5-6). The ultimate lesson heightened here is “The Steering Committee wants the whole seed set Biomet used for the algorithm’s initial training. That request reaches well beyond the scope of any permissible discovery by seeking irrelevant or privileged documents used to tell the algorithm what not to find. That the Steering Committee has no right to discover irrelevant or privileged documents seems self-evident.”

Here it is theorized that no good answer outcome results from this case inasmuch: Technology issues should be worked out by experts in a non-combative way when it comes to production formats, scope of data, date ranges, custodians and other objective factors in conducting a search. Courts really do not want to get sucked into it. See, Joshua Gilliland, Esq, Guess What? Cooperation Does Not Mean Privilege or Relevancy Are Dead (Bowtielaw.com12/11/13). [http://bowtielaw.wordpress.com/2013/12/11/guess-what-cooperate-does-not-mean-privilege-or-relevancy-is-dead/]


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Is the Time for Predictive Coding (TAR) Already Past?

No. Not for a while. However, the electronic data discovery (EDD) industry has been working to improve predictive coding. Predictive coding has several limitations, chief among them, that the technology is still dependent on human interaction, and therefore subject to human error, which if remains uncorrected or unnoticed, can decrease the efficacy of predictive coding over time. Currently, predictive coding offers no solution to correct for this margin of error. Additionally, predictive coding isn’t actually quicker or more thorough than human review, it is only the implementation of large storage capacities or fast processor speeds that make it appear to be so. New EDD technology developers are trying to advance e-discovery techniques by integrating computational linguistics, data mining, language translation etc…in order to create a better tool to make EDD easier and more accurate, without the need for human review during the process. Human review would only be required for error checking and consistency of the EDD technology. Mostly these new methods analyze ESI based on semantic content, so the types of EDD will be adaptable and easily implemented. The new technology is also advanced enough to provide the user with real-time feedback as well as adapt to changing needs and different users in order to maintain accuracy between the user and the program. This type of review ensures constant consistency and accuracy, while eliminating the traditional method of using predictive coding, which is incapable of doing so. See, Joel Henry, Predictive Coding Is So Yesterday, (Lawtechnologynews.com 2/18/14). [http://www.lawtechnologynews.com/id=1202643337112/Predictive-Coding-Is-So-Yesterday?slreturn=20140326020805]

Best Practices in Predictive Coding

Warwick Sharp, Ten Essential Best Practices in Predictive Coding, (Todays General Counsel, Apr/May 2013) [http://www.todaysgeneralcounsel.com/ten-essential-best-practices-in-predictive-coding-2/]

1. Choose the expert with due consideration: Choose the trainer, "the expert." with

due consideration as the technology will encode incorrect guidance. 2. Begin with collaborative training: Use a team of two or three experts to train the

system together for the first 500 to 1000 documents. The rule is that the trainers are required to reach consensus on the relevance designation for each document. This tactic allows the group to progressively refine the concept of relevance that underlies the case.

3. Tag by "application-accessible" data: Instruct the expert to tag documents based on the data that can be accessed by the system. Essentially, this tagging based on the document content, as opposed to the metadata.

4. Understand the distinction between the "super issue" and individual or sub-issues: The super issue relates to whether the document is relevant or not to the case and is used to construct the review set. Within the set of review documents, the individual issue scores are used solely to organize the review set and assign documents to the relevant review teams.


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5. Separate control documents from training documents: to ensure the statistical validity and defensibility of the coding process, the control documents must be kept separate from the training documents.

6. Build control before training: The control set serves as an independent yardstick for measuring the performance of the predictive coding system. This approach facilitates use of the control set as an independent tool for monitoring of training.

7. Use manual training mode: A reviewer is assigned to train the coding system as part of an intensive, dedicated training effort. Manual training yields better quality input for predictive coding training because the expert is very aware of the training process and the significance of each document to the overall outcome.

8. Track training consistency: Ideally the coding application monitors the expert's input across various dimensions, to verify that input is consistent. Flag potential inconsistencies for verification.

9. Use graduated relevance scores: Coding systems typically generate for each document a graduated relevance score. This score allows the user to intelligently control the volume of documents to be passed on to review. This is a key e-discovery business decision, which needs to be based on criteria of reasonableness and proportionality.

10. Validate results: Verify culling decisions. Test documents below the cut off score to double check that the cull zone does in fact contain a very low prevalence of relevant documents. This can be done by reviewing and tagging a random sample from the cull zone, and thereafter possibly modifying the cull zone.

Let’s all learn from the following case example. Plaintiffs attempted to expand the scope

of discovery in In re Bridgepoint Education (US Dist LEXIS 108505 [US DC SD Cal, Aug 6, 2014]) by arguing that predictive coding would prevent the discovery from being overly burdensome on the defendants. In their reply to the plaintiff’s request, defendant’s argued that the cost of review for these documents would be roughly $390,000 while the plaintiffs argued that it would be closer to $11,279 based on the use of a predictive coding system. Defendant’s countered this by arguing that predictive coding, while helpful in discovery production, does not make manual review elective. The manual review, argued defendants, was necessary for determining relevance and for protecting confidentiality. The court decided in favor of the defendants on the basis of proportionality, finding that expanding the scope of discovery would be unduly burdensome. Furthermore, the court felt that expanding the scope would be unnecessary because the plaintiffs would probably find what it needs in what was already produced. The court was not persuaded by plaintiff’s arguments that predictive coding would drastically reduce the costs of the discovery and that manual review is elective when using predictive coding. As Bow Tie Law points

out simply claiming predictive coding would reduce the cost and burden of discovery is not enough. There still needs to be proportionality in the scope of discovery and proportionality “will always be concerned with cost of review.” Even if predictive coding can reduce proportionality issues by eliminating irrelevant documents manual review still needs to be accounted for, which includes weighing the burden of that review against the likely benefits. See, Does Proportionality


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Disappear If a Lawyer Says “Predictive Coding” Three Times?, (BowTieLaw.Wordpress.com 8/20/14) [https://bowtielaw.wordpress.com/2014/08/20/does-proportionality-disappear-if-a-lawyer-says-predictive-coding-three-times/]

The following tips can help judges and lawyers deal with electronic data discovery [EDD] technology:

1. Evidence is digital: Embrace it. - Come to terms that e-discovery is here to stay because it is a powerful and

persuasive source of evidence.

2. Manage more. - Rid your cases of ED early on by reporting on “issues of preservation, scope,

search, forms of production, and privilege at the start of the case.”

3. Gather the geeks. - IT experts, who are more equipped to deal with ED, can help to promote

efficiency.

4. Focus on forms of production first. - Select proper forms of production at the outset of a case and consider the

nature of the ESI and the parties’ needs.

5. Hardware, software, and wetware. - ‘Wetware’ refers to what people said, did or knew. Direct your discovery at

communications, databases, and documents.

6. Keywords are tools best used by those who know what they need. - Have parties “agree upon sensible collection and culling criteria and to test

proposed searches on representative samples of ESI.” Then, both sides should determine ways to eliminate ‘false positives.’

7. Sample, test, iterate. - Conduct multiple searches.

8. Don’t confuse storage media with its contents. - Be mindful not to overstep your boundaries and request an opponent’s hard-

drive, passwords, and any other private information without the necessary steps such as seeking an order or appointing a neutral specialist.

9. Don’t make yourself the standard. - “Expect greater competence from the parties and counsel than you possess.”

10. Demand competence. - Be prepared and demand competence in matters relating to ESI.

11. Just because two lawyers agree they can fly, don’t unlock the roof. - Even though lawyers are encouraged to settle, judges need to intercede,

especially regarding bad decisions about ESI.

Craig Ball, Judicial Advisory, Law Technology News, (Oct. 2013).


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For Further Information

Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery

Can Be More Effective and More Efficient Than Exhaustive Manual Review, XVII RICH. J.L. & TECH. 11 (2011). [http://jolt.richmond.edu/v17i3/article11.pdf]

Maura R. Grossman & Gordon V. Cormack, The Grossman-Cormack Glossary of

Technology Assisted Review (Version 1.02, Nov. 2012). [http://cormack.uwaterloo.ca/targlossary]

Maura R. Grossman & Gordon V. Cormack, Inconsistent Responsiveness Determination

in Document Review: Difference of Opinion or Human Error? 32:2 Pace L. Rev. (Spring 2012). [http://digitalcommons.pace.edu/plr/vol32/iss2/1/].

Matthew Nelson, The "Sedona Bubble" and the Top 3 TAR Trends of 2013,

(Clearwellsystems.com 4/23/13) [http://www.clearwellsystems.com/e-discovery-blog/2013/04/23/the-sedona-bubble-and-the-top-3-tar-trends-of-2013/].

Bob Ambrogi, New “ROI Calculator” Shows Savings from Predictive Coding in Cost

and Hours (Catalyst, 8/6/13). [http://www.catalystsecure.com/blog/2013/08/new-roi-calculator-shows-savings-from-predictive-coding-in-cost-and-hours]

Elizabeth Iglesias and Claire O'Sullivan, The Price of Privilege: Protective Orders and E-Discovery Costs (The Recorder - 9/19/12 available on Law.com) [http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1347811770666&The_Price_of_Privilege_Protective_Orders_and_EDiscovery_Costs]

Court Affirms that Discovery Standard is Reasonableness, Not Perfection: Malone v. Kantner Ingredients, Inc., (2015 WL 1470334 [D. Neb. Mar. 31, 2015]).


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Chapter 9: Authentication

As we get into the next two chapters, it is my opinion that the rules of evidence are no different than the rules you have always been using. The Courts are just applying those rules to the newer technology and some lawyers and judges are scared of it. So let’s make it simple:

So think of ROAR: Relevancy – Operation – Authenticity & Reliability.

Look at what you are trying to introduce.

What is its current format?

Are you going to be introducing it in this format, or do we have to alter the format for ease of consideration by the court/jury?

Is the evidence Relevant to the case?

How does the system Operate?

o Is it internet based? o Is it network/cellular based o Is it stored communication? How is it stored? Where is it stored? Who has access?

Who has ability to alter? o Is it content or non-content? o Is it located on an Electronic Communication Service (“ECS”) or a Remote

Computing Service (“RCS”) or a hybrid?

What will be required to prove the Authenticity both of the original format, the presented

format and the operation of the system?

Keep in mind that for Authenticity you will have to show the court - how Reliable is the

device(s) that created/stored/safe-guarded/or changed the format to the present one being introduced?

So we begin with Authentication.

While existing rules of evidence are enough for social media, you have to look at things slightly differently. (See generally, Breanne Democko, Social Media and the Rules on Authentication, 43 U. TOL. L. REV. 367 [2012]).

msciarri

Draft


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As digital evidence becomes more prevalent in trials, authentication of that evidence becomes critical. As the Court of Appeals has stated, traditional methods of proof are applicable to digital evidence as well.

For example, in United States v. Mebrtatu, (No. 12-4300, 3rd Circuit, October 30, 2013) the court found that in order to authenticate text messages, the Government needed to present “substantial evidence from which a jury could infer that the text messages were authentic and attributable to the defendant.” In People v. Pierre, (41 AD3d 289 [1st Dept 2007]), the court found that circumstantial evidence was sufficient to authenticate an instant message alleged to have been sent by the defendant. Although the defendant contended – without proof – that someone else accessed his account, the court determined that this went to the weight of the evidence, not the admissibility. In Martin v. Protexit, (98 AD3d 63 [1st Dept 2012]), the court held that electronic signatures on medical records were admissible with the same validity and effect as a handwritten signature.

Issues regarding the admissibility of digital evidence will continue as technology progresses. However, the standard for admissibility is likely to remain whether the offered evidence is genuine and that there has been no tampering. Peter A. Crusco, Authenticating Digital Evidence, (NYLJ, 2/25/14)

Federal Rule 901: Authenticating or Identifying Evidence

(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

(b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

(2) Non-expert Opinion About Handwriting. A non-expert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

(5) Opinion about a Voice. An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.


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(6) Evidence about a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

(A) a particular person, if circumstances, including self-identification, show that

the person answering was the one called; or

(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

(7) Evidence about Public Records. Evidence that:

(A) a document was recorded or filed in a public office as authorized by law; or

(B) a purported public record or statement is from the office where items of this kind are kept.

(8) Evidence about Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

(A) is in a condition that creates no suspicion about its authenticity;

(B) was in a place where, if authentic, it would likely be; and

(C) is at least 20 years old when offered.

(9) Evidence about a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court

Under Federal Law, FRE 901 (a) the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Under FRE 104 (b), the Federal Court judge may conditionally admit the evidence subject to the jury's ultimate determination as to its genuineness. That rule therefore requires the admission of evidence if there is sufficient proof that a reasonable juror could find in favor of authenticity.

New York Rule Regarding Authentication New York courts are generally considered to be invested with greater decision-making power than federal courts with respect to whether a sufficient foundation has been established to show the authenticity of a particular exhibit. In People v McGee (49 NY2d 48 [1979]), the Court of Appeals held that: “[i]n determining whether a proper foundation has been laid for the introduction of real evidence, the accuracy of the object itself is the focus of inquiry, which must be demonstrated by clear and convincing evidence.”


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Social Media Posts

Recent cases “demonstrate that if the characteristics of the communication proffered as evidence are genuinely distinctive, courts are likely to allow circumstantial authentication based on content and context. By contrast, if the characteristics are general, courts may require additional corroborating evidence. These cases also illustrate courts’ concerns that someone other than the purported owner of the account can manipulate social media sites. Litigators can more successfully clear authentication hurdles by addressing these concerns and by carefully collecting, preserving, searching, and producing social media data.”

The most straightforward way to authenticate a social media post is through testimony of the person who actually created the post. However when a witness is unavailable or uncooperative, circumstantial evidence such as "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances” can help to authenticate the post. (FRE 901[b][4]). Metadata, such as location, used ID numbers, IP addresses and when messages were created or revised can also provide the requisite circumstantial evidence as well. Related data such as email notification of posting activity and computer logs may also assist. See, H. Christopher Boehning and Daniel J. Toal, Authenticating Social Media Evidence, (NYLJ, 10/2/12) There is a divide amongst states between how social media evidence should be authenticated. One way is the “Maryland approach” which puts a greater burden on the Government to ensure that the social media evidence is properly authenticated. The Maryland Court of Appeals in deciding Griffin v. State, (419 Md 343 [Md 2011]), held that the admitting party should either (1) ask the creator of the social media post if they did in fact create the profile or make the post, (2) search the creator’s computer hard drive to determine if the post came from that specific computer, or (3) contain the social media website and obtain information to identify the creator of the post in question. Here, the court struck the Myspace post and conviction because the prosecution made no effort to authenticate. The court emphasized the ease of creating fake accounts. The dissent accused the majority of “technological heebie-jeebies.”


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On the other hand, there is the “Texas approach” exemplified by Tienda v. State, (358 SW3d 633 [Tex Crim App 2012]). Under this approach the Court stated that the best method for authenticating electronic evidence will need to be decided on the nature of the evidence and the particulars of a given case. Tienda dealt with the authentication of three Myspace profiles created by the defendant, who had been convicted of the murder of David Valadez. The profiles all referenced the defendant's nicknames of "Mr. T" and/or "Smiley" and listed the city of "D Town" or Dallas, which is where defendant lived. The pages also contained multiple pictures of the defendant, including those showing off his gang tattoos. On one of the profiles a link was placed stating "RIP David Valadez" which when clicked on played the song that was played at Valadez's funeral. The pages also reference killing multiple times including the statement "I LIVE TO STAY FRESH!! I KILL TO STAY RICH!!" Additionally, statements regarding circumstances surrounding the murder were placed on the pages. The court found this, and other, evidence to be sufficient circumstantial evidence to authenticate the pages as belonging to the defendant, despite the State never clearly establishing how a Myspace page is created or maintained. The conviction was affirmed.

This approach argues that it should be the jury and not the trial judge that is in charge of

resolving any factual issues on the authentication of social media evidence.

In Parker v. Delaware, (85 A3d 682 [Supreme Court, Delaware 2014]) defendant appealed her conviction of Assault Second Degree from the Superior Court of the State of Delaware claiming the court erred in admitting statements posted on her Facebook. The State offered circumstantial evidence at trial, which included the defendant’s picture, name and time stamp on the post, to connect the defendant and her post on Facebook. The defendant argued to have the rule adopted by the Griffin court but the Supreme Court of Delaware opted for the Tienda rule. The court held a trial judge may admit a relevant social media post where the proponent provides direct or circumstantial evidence sufficient to support a finding by a reasonable juror that the proffered evidence is what the proponent claims it to be. It will ultimately be left to the jury to determine whether a social media post was generated by the original creator or through fraud by another.

Likewise, in People v Goins (2010 WL 199602 [Mich Ct App Jan 21, 2010]) where the victim’s post on Myspace allegedly contradicted her version of events at trial, the court refused to find the post authentic. The appellate court held that this was an error, because “distinctive characteristics” showed it to be reliable; the parties had met through this account; content of post suggested she wrote it; and it was unlikely she shared password. However, it was still hearsay, because defendant had not laid proper foundation to confront her with it as a prior inconsistent statement.

Campbell v Texas, (382 SW3d 545 [Tex. App. 3d Dist 2012]) The judge in a domestic violence case allowed three Facebook messages from the defendant’s account that contained “unique speech patterns” and demonstrated direct knowledge of the incident at


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issue in the case. Photographs and video from social media sites can be authenticated the usual way- by the testimony of a witness familiar with the scene depicted. But such materials generally are not self-authenticating.

Burchette v Abercrombie & Fitch Stores, (2010 WL 1948322 [USDC SDNY May 10,

2010]). In an employment discrimination case, the court excluded photographs “found and downloaded from Facebook” without more to authenticate them.

State v Eleck, 130 Conn App 632 [App Ct of Conn 2011] The defendant appealed a guilty judgment for assault in the first degree on the grounds that the court improperly failed to admit into evidence a social media printout. The court affirmed the judgment of the trial court. The defendant attended a party where alcohol was being consumed and reportedly got into two verbal confrontations with one guest, Matthew Peacock. Shortly after 2:30am the defendant and Peacock got into a physical altercation. Three other guests joined the fight to help Peacock, including Zachary Finch, and when the combatants were separated both Peacock and Finch had suffered stab wounds. The defendant claimed that the court erred when it excluded from evidence a printout from his Facebook account which documented an electronic message sent to him by a witness who claimed she had only spoken to him in public and had never communicated with him before in person, by telephone, or by computer. The prosecution objected to the printout being admitted on the grounds that it could not be authenticated. The defendant stated he had printed out the conversation from his own computer, and that he recognized the witness’s username because she had ‘friended’ him on Facebook a short time before he received the message.

The court denied the admission as evidence because it has not be authenticated that the messages were in fact written by the witness herself. The court noted that electronic messages can easily be sent by a third party acting under the guise of the named sender. Account holders often leave their phones logged into their accounts and sometimes leave their phones and computers unattended which could allow someone else to access their accounts and send messages. Furthermore, these accounts are also subject to compromise by hackers and so merely providing evidence that a message came from a particular person’s account does no prove that that particular person authored the message.

Smith v. State, (136 So 3d 424 [Supreme Court, Mississippi, 2014]). Although the court found the lack of proper authentication in this case to be harmless error due to overwhelming evidence of Smith’s guilt and affirmed the defendant’s conviction, it did stress the ease at which a person could create a Facebook profile, masquerading as someone else, or how a third party can search and access personal details of a real Facebook user to obtain that person’s username and password and log in under their name. Therefore, in these situations, it cannot be certain that the author of a social media post is in fact the profile owner. The Court stated “something more than simply a name and a small, blurry photograph . . . is needed to identify the Facebook account as his in the first place. To establish authentication, the State could show (1) the message sender admitting


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authorship, (2) internet service provider or cell phone company business records showing that the messages originated from the sender’s phone or computer, (3) the messages contain information that only the sender would know about, (4) the sender’s response to a message indicates circumstantially that he is the author of the communication, or (5) other circumstances that are case-specific which can prove authentication. In this case, the Court stated the State failed to make a prima facie case that the Facebook messages were sent by the defendant. The only information offered on behalf of authentication was Jenny Waldrop’s testimony that the messages were from the defendant. However, this is a loose connection because the State did not prove how Waldrop knew the messages were authored by the defendant or that the Facebook profile itself belonged to the defendant. Therefore, the trial court had abused its discretion and the Court of Appeals erred by allowing Facebook messages that were not properly authenticated in evidence. Likewise the case of United States v Vayner, (769 F3d 125 [2d Cir. Oct 3, 2014]) is very

illustrative in as to a failure to properly authenticate the social media posts of the defendant. In this case, the defendant Aliaksandr Zhyltsou was convicted by jury of the unlawful transfer of a false identification document. The defendant appealed the conviction on the grounds the Court abused its discretion when it allowed the prosecution to submit a picture of a social media profile that purportedly belonged to the defendant into evidence even though it had not been properly authenticated. Zhyltsou faced one charge of transfer of a false identification document, which he had emailed from the address [email protected] (the “Gmail address”). Vladyslav Timku, a friend of Zhyltsou, testified that he asked the defendant to create a fake birth certificate that would make Timku the father of a fictional daughter to avoid the compulsory military service required by his native country Ukraine. Timku continued to testify that Zhyltsou agreed to create the document and later, when Zhyltsou was done he emailed it to Timku from the Gmail address. The prosecution offered corroborating evidence as well as expert testimony that cited the origins of the e-mail as New York, but failed to offer any evidence which identified what computer it was sent from or what IP addresses were linked to it. Thus, the only evidence linking the defendant to the Gmail address was the testimony of Timku.

Before the prosecution rested its case, they indicated that they were to call an unexpected final witness: Special Agent Robert Cline of the State Department’s Diplomatic Security Service. The government said that it intended to introduce a printout of a web page that the government claimed to be Zhyltsou’s VK.com account, a Russian website akin to Facebook, which contained a photograph of the defendant and listed his name as Alexander Zhiltsov (an alternate spelling of Zhytsou). The defense objected, arguing that the page had not been properly authenticated and was inadmissible as evidence, but the district court overruled the objection, concluding the VK page was Zhyltsou’s. The page indicated that Zhiltsov worked at a company called “Martex International” and at “Cyber Heaven,” which corresponded with Tinku’s testimony that they two had worked at the entities. The page also listed Zhiltsov’s Skype address as Azmadeuz, the same name used for the Gmail address. The prosecution argued that this was proof of the connection between Zhyltsou and the Gmail address.


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Rule 901 of the Federal Rules of Evidence requires that in authenticating or identifying an item of evidence, the proponent must provide evidence sufficient to support a finding the item is what the proponent claims it is. The requirement is satisfied when sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification. The courts have said before that the bar for authentication is not particularly high, furthermore rule 901 provides several examples of proper authentication, but this list is by no means exclusive but serve to function more as a guide. However, this court determined that the district court abused its discretion in admitting the VK page without proper authentication. The government did not provide a sufficient basis on which it could be concluded that the printout was what the government claimed it to be. The court noted that the government failed to provide any extrinsic evidence to show that Zhyltsou was the author and owner of the VK page. The mere fact the page contained

Zhyltsou’s name and photograph is not enough to permit a reasonable conclusion that the page was create by the defendant or on his behalf. Furthermore, the information on the page was not obscure knowledge, but information that was already known to others such as Timku, who may have had a reason to create a false page attributed to the defendant. The Court continued to note that there was no evidence provided that Zhyltsou had ever had a VK page, and that the page was the one the prosecution provided, or that there was any sort of verification required to create such a page. The printout of the page was of vital importance needed to make the government’s case against the defendant by linking him to the name Azmadeuz as well as corroborating the testimony of Timku who the jury could have easily found to be un-credible given his history. The court vacated the judgment and remanded for a new trial. See also Andrew Keshner, Social Media Evidence Not Proper for Trial, Circuit Says, (NYLJ 10/08/2014). see also Marlisse Silver Sweeney, Social Media Web Page Not Enough to Show Account Ownership, Law Technology News (11/18/2014), [http://www.lawtechnologynews.com/id=1202676696464/Social-Media-Web-Page-Not-Enough-to-Show-

Account-Ownership?slreturn=20141024134800]

Judicial Notice In People v Eden (95 AD3d 1446 [App Div, 3d Dept 2012]) the Appellate Division took judicial notice of the Drug Treatment Court Participant's handbook which was relied upon by the People in their brief but not included in record on appeal. The Court noted that the handbook was available on the official government website for the Unified Court System.

Electronic Signatures in Emails With emails becoming one of the most important forms (if not the primary means) of communications for companies, lawyers are using emails as potential evidence for summary judgment and trial. Attorneys are seeking to admit them under Rule 803(e) of the Federal Rules of Civil Procedure – the business record exception. The Second Circuit has adopted a generous interpretation of the rule, construing it to favor the admission of evidence which has any probative value at all. In Penberg v HealthBridge Management, (823 F Supp2d 166 [US DC EDNY 2011])


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the court allowed the admission of cryptic emails sent from the personal computer of an employee of a company hired to investigate whether the plaintiff leaked confidential information. The court noted that emails may be admissible if they were regularly made in furtherance of the employer’s need, not for the personal purposes of the employee who made them. While, twenty years ago, the Ninth Circuit, in Monotype v International, (43 F3d 443 [USCA 9th Cir 1994]) ruled that emails could not be admitted because, unlike electronic bookkeeping, emails are a far less systematic business activity, that is not the case anymore. Since then, the Ninth Circuit courts have been willing to admit emails that were made during the ordinary courses of business. Emails have become such a common place in the business world that courts have found that emails sent from a third party that are integrated into another entity’s records are admissible. See, Brawner v Allstate Indemnity, 591 F3d 984 [USCA 8th Cir 2010; Jennifer Hurley McGay & Sujata M. Tanikella, Admissibility of Email Under FRE’s Business Records Exception (NYLJ 05/05/2014). New York Courts appear to have reached a consensus on whether and how the statute of frauds applies to electronic signatures in emails. The consensus has suggested that as long as a sender has acted with volition, i.e. manually typed his signature as opposed to using an automatic signature generator, then the subscription requirement of the statute of frauds has been satisfied. While the Court of Appeals has not heard the issue, the Appellate Division has consistently distinguished situations involving a manually typed signature from those involving a pre-printed or automatically generated signature. In Naldi v. Grunberg, supra, the First Department interpreted the objective of the statute of frauds as to ensure an objective record of both the existence of an agreement and its terms, which can occur electronically. The decisions of Stevens v. Publicis, S.A., relying on Rosenfeld v. Zerneck, and Bayerische Landesbank v. 45 John Street uphold this interpretation of electronic signatures. The court in Stevens found that the email was properly subscribed while the court found the opposite in Bayerische, which involved a pre-printed signature attached to an email that constituted the entirety of the alleged written agreement. In Bayerische the court explained that a typewritten name in an email satisfied the subscription requirement because “the sender’s act of typing his name at the bottom of the email manifested his intention to authenticate.” While the Appellate Division has not laid out this principle explicitly, the reasoning in decisions touching on this issue is consistent and clear. See, Michael T Mervis and Jonathan E Siegelaub, Can an Email Satisfy the Subscribed Writing Requirement? (NYLJ 12/15/14)

The case of Naldi v Grunberg (80 AD3d 1 [App Div, 1st Dept 2010]) concerned an email correspondence for the purchase of commercial real estate property. The buyer emailed the offer of $50,000,000 to which the seller accepted pending the completion of a contract. The seller also gave the buyer the right of first refusal if a better offer was presented. The property was sold to another buyer for $52,000,000 and the right of first refusal was never honored. Though the initial buyer lost his claim as he did not respond to the email regarding the right of first refusal, the court likened email to any other writing. "Given the vast growth in the last decade and a half and the number of people and entities regularly using e-mail, we conclude that the terms 'writing' and 'subscribed' in General Obligations Law Section


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5-703 should now be construed to include, respectively, records of electronic communications and electronic signatures..."

The issue at hand in this breach of contract case was whether email negotiations between

two attorneys, which contained their printed names at the end of each email, constituted signed writings in accordance with CPLR §2104, sufficient to constitute a settlement agreement. The relevant portion of CPLR §2104 states “[a]n agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney.” Following precedent established in Williams v. Delsener, (59 AD3d 291 [1st Dept 2009]), the court held that the printed names at the end of the emails constituted signed writings. In making its decision, the court also noted that the emails indicated that the opposing party was aware of and consented to the settlement, and that payment was made in the same amount agreed to in the settlement emails. Finally the court noted that there was nothing in the record to indicate otherwise. Maria McBride Productions, Inc. v. Madonna Badger and Badger & Winters Inc. (Civil Ct, NY Co, February 26, 2015)

o It’s important to treat all settlement negotiations, even negotiations over email, seriously and as potential binding contracts. In Turner v Caspian Realty, Inc., (70143/2013, NYLJ 1202731568372, at *1 [Sup Ct, Westchester Co, Jun 30, 2015]) the court ruled that the parties did in fact settle the matter. The issue of the case was whether the parties had settled the case through negotiations over email exchange. Frederick Turner is an attorney who once represented Caspian Realty. Turner alleged that he was owed $41,766 for the legal services he provided Caspian. Turner sued Caspian, representing himself pro se. Turned filed a verified complaint in Westchester County Supreme Court and asserted five causes of action including breach of contract and unjust enrichment and sought a judgement of $41,766 plus interests, costs, expenses and attorney fees. In turn, Caspian filed a verified answer, which denied most of Turner’s allegations and asserted affirmative defenses. Both parties filed dispositive motions and on September 26, 2014, the court dismissed two of Turner’s five claims. After a month, Caspian filed another notice of motion, requesting time for leave to amend its answer and also requesting permission to assert new affirmative defenses. Two of the defenses were related to its claim that the parties had entered into a settlement agreement. Caspian’s motion was based on settlement negotiations that had taken place after the parties submitted their first motions but before those motions were decided on September 26. Negotiations were conducted over emails between Turner and Caspian’s attorney. The court noted that the emails “clearly evinced a meeting of the minds.” Furthermore, the court noted that Turner presented his offer in his email on September 25, 2014 and both parties agreed to the lump sum amount constituting mutual assent. The plaintiff also consented to notifying the court of their settlement negotiation. The court, citing Maria McBride Productions, Inc. v Badger, (46 Misc.3d 1221A, Slip Copy, 2015 WL 819943 [NY City Civ Ct, 2015]), ruled that “the parties entered into an agreement via e-mail to settle the instant action and the emails represent a


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signed writing pursuant to CPLR 2104 and, as such, is a valid and enforceable agreement, despite plaintiff's refusal to execute the stipulation.” See, Thomas E.L. Dewey, Why Attorneys Must Take Negotiation Emails Seriously, (NYLJ 7/29

In Smith v Charles, (37 Misc 3d 1229[A] [Sup Ct, Kings Co, Dec 5, 2012]) the Court held

that circumstantial evidence could verify emails just as such circumstantial evidence authenticates a voice heard over the telephone when the message reveals the speaker had knowledge of the facts that only the speaker would likely know. The court held that enough circumstantial evidence existed in the record to authenticate relevant emails as written and received by defendant. (See also, Hakim v Hakim, 99 AD3d 498, [App Div 1st Dept 2012]).

o But see, Court held that presumption of receipt of a monthly bill was inappropriate where there was a question of fact as to whether the bill was delivered to the defendant’s “spam box.” (Law Office of Kenneth J. Weinstein, P.C. v. Signorile, Index No.: 7623/2013 [Sup Ct, Nassau Co., Jan 27, 2014]).

Advanced Global Tech., LLC v Sirius Satellite Radio, Inc., (44 AD3d 317, 318 [App Div, 1st Dept 2007]). Trial court erred when in deciding a summary judgment motion, it relied upon an “e-mail (that) was not otherwise admissible and thus cannot serve as documentary evidence which conclusively establishes a defense.” The email had been offered as additional grounds for dismissal pursuant to CPLR 3211(a)(1) and was accepted as documentary evidence in the court below. See also, Oberman v. Textile Mgt. Global, (2014 NY Slip Op 31863(U) [Sup Ct, NY Co July 11, 2014]). In an action to recover unpaid sales commissions the court, in deciding defendant’s motion to dismiss, stated the legal principle that “a dismissal is warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.” The court goes on to emphasize that affidavits, emails, and letters are not considered documentary evidence, and therefore cannot be taken into consideration when deciding a motion to dismiss.

Forcelli v. Gelco Corp., (2013 NY Slip Op 5437 [App Div, 2nd Dept, July 24, 2013]). This case involved the “subscription” requirement of CPLR 2104. At issue was a sent email which confirmed the terms of an oral agreement between parties, where the sender added her name at the end of the email. The court held that given the proliferation of email as a form of communication, the name at the end of the email constituted a signature. The court gave particular weight to the fact that the “signature” in this case was not a signature automatically added by an email program, but was rather typed by the sender herself. See Joel Stashenko, Email Signature Ruled Valid to Enforce Settlement (NYLJ 7/29/13/) [http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202612847921&slreturn=20130727101751]

Summary Judgment Motion. R.P.I. Professional Alternatives Inc. v Kelly Servs. Inc., (26

Misc 3d 1213[A], 2010 NY Slip Op 50088[U] [Sup Ct, NY Co, Jan. 19, 2010]). Trial court held e-mails annexed to counsel's affidavit in opposition to plaintiff's motion for summary judgment as admissible evidence, where they were discussed and presented as an exhibit at plaintiff's principal's deposition.


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In a prosecution for deriving support from the earnings of a prostitute, incriminating emails were entered into evidence against the defendant. On appeal, the defendant argued that the State failed to authenticate the emails in that they failed to show that the defendant authored the emails. The defendant alleged that the computer the emails were sent from was a shared computer that those who had access also had the defendant’s password and that emails were frequently sent emails by others in his name. Analyzing the emails, the court held that there were adequate “confirming circumstances” to authenticate them. Specifically, the court found that the emails came from an account bearing the defendant’s name and acknowledged to be used by the defendant, the emails were found on the hard drive of the computer owned by the defendant, at least one of the emails contained an attached photo of the defendant and another email contained information that was unique to the defendant. The court was not persuaded by the defendant’s uncorroborated allegations that others may have had access to the computer. Instead, the court held, these allegations were relevant to the weight given to the emails messages, not the admissibility. Commonwealth v. Duncan Purdy, (2011 Mass. LEXIS 169 [December 6, 2010]).


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Chapter 10: Admissibility

The fundamental processes in determining the admissibility of ESI are no different than with written information. ESI must still be authentic and relevant, and not contain information which is otherwise inadmissible.

Most people are unaware that their social media posts can be used in court. A survey from Lawyerz.com indicated that less than half of the takers realized that their posts can be used a legal evidence. Users don’t even have to post anything illegal, just ‘checking in’ to a location can be used to show that a defendant was in a location at the time a crime occurred. Josh Crank, Most Social Media Users Unaware Posts can be Used in Court (Lawyers.com 7/30/2013) [http://blogs.lawyers.com/2013/07/social-media-used-agaisnt-you.]

The seminal case, with respect to admissibility of ESI, is Lorraine v Markel American Ins. Co. (241 FRD 534 [D Md 2007]). Lorraine provides a summary of the best evidentiary practices in a survey of state and federal decisions on all significant and recurring issues associated with establishing a foundation for ESI. The Lorraine decision addresses e-mail, Internet website postings, text messages. and chat room content, computer stored records and data, computer animation, and computer simulations, and digital photographs. (See, Hon. Paul W. Grimm, Back to the Future: Lorraine v Markel American Ins. Co. and New Findings on the Admissibility of Electronically Stored Information, 42 AKRON L REV 357 [2009]). NYS Technology Law § 306. Admissibility into evidence. In any legal proceeding where the provisions of the Civil Practice Law and Rules are applicable, an electronic record or electronic signature may be admitted into evidence pursuant to the provisions of article forty-five of the Civil Practice Law and Rules including, but not limited to section four thousand five hundred thirty-nine of such law and rules.

Admissions and Prior Inconsistent Statements

People v Klincar (2011 Ill App Unpub LEXIS 3217 [Ill App Ct 5th Cir, Dec 22, 2011]) Appeal from conviction of two counts of predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse. The defendant, age 21 at the time, had a sexual encounter with a 12 year old. Afterwards, the victim boasted on Myspace how she had sex with defendant and about how seductive she is when she is drunk. She also commented that she was unsure of whether or not the defendant used a condom and discussed what she would do if pregnant. At trial, the victim denied that she and defendant had sex. However, when the posts had been discovered by law enforcement, she had admitted that they were true and had signed a report asserting to the truthfulness of her statements. That report, as well as the Myspace postings were used to impeach the victim at trial and subsequently were admitted as evidence of prior inconsistent statements. The

msciarri

Draft


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court held that the victim's statements about the truthfulness of the postings and testimony from the police officer she spoke with, was sufficient to authenticate the postings, even though she had stated earlier in trial that she didn't remember posting them.

Reputation/Character (where allowed) In three separate cases (one from Rhode Island and two from California), photos posted on social media sites were admitted at trial as character evidence. The Rhode Island case stemmed from a drunk driving accident which seriously injured a woman. Two weeks after being charged, the defendant, a 20 year old college Junior, attended a Halloween party dressed as a prisoner. Someone then posted pictures of the defendant in his costume on Facebook. The pictures were then used by prosecutors as character evidence during sentencing to paint the defendant as an unrepentant partier who “lived it up while his victim recovered in the hospital.” The defendant was subsequently sentenced to two years in prison. The first California case stemmed from a drunk driving accident that killed the passenger in defendant's car. The prosecutor was willing to recommend probation for the defendant, but then found photos of the defendant taken after the crash, but before sentencing, holding alcoholic beverages and making joking comments about drinking on Myspace. The photos were used as character evidence during sentencing and the defendant received a two year sentence. The second California case also stemmed from a fatal drunk driving accident. The defendant's counsel advised her to take down her Myspace page for fear that any pictures or posts might be used against her, as in the previously mentioned cases. The defendant did not remove the page, and at sentencing the prosecutors used multiple pictures of her drinking, found on the defendant's Myspace page that were posted after the accident, as character evidence against her. She was sentenced to five years in prison. See, Eric Tucker, Facebook Used as Character Evidence, Lands Some in Jail (USA Today, July 16, 2008) [http://usatoday30.usatoday.com/tech/webguide/internetlife/2008-07-19-facebook-trials_N.htm]

Hearsay Exception Facebook messages admitted to give context to the parties’ relationship, not as to whether alleged events occurred, therefore not hearsay. (People v Oyerinde, (2011 Mich. App. LEXIS 2104, 2011 WL 5964613 [Mich Ct App Nov 29, 2011])). In this case, the Facebook messages sent by the victim to the defendant and sent by the victim to her sister were not hearsay because they were not being used to show whether specific events occurred, but instead provided context to the parties’ relationship (state of mind exception to hearsay). The messages were not read into the record and the trial court and trial counsel did not specifically refer to the alleged incidents. The trial court merely used the messages to provide context for the victim and the defendant’s relationship.

However, in an employment discrimination case, the plaintiff attempted to admit deposition testimony regarding a Facebook post and the court did not allow the testimony into


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evidence. The court held that the Facebook post contained a statement that was being offered for the truth of the matter asserted and therefore was impermissible hearsay. Fairweather v. Friendly’s Ice Cream, (2014 US Dist LEXIS 100755 [USDC ME Jul 24, 2014]); Social Media Hearsay Objections (Bow Tie Law’s Blog, 7/31/14);

The issue of whether a “Read Receipt” email constituted hearsay was raised by the defendant in Fox v. Leland Volunteer Fire/Rescue Dep't Inc., (2015 US Dist LEXIS 30583 [US DC EDNC, Mar. 10, 2015]) who challenged a “Read Receipt” sent from the defendant’s email address to the plaintiff, triggered when an email the plaintiff sent to the defendant was opened. The plaintiff sued Leland Volunteer Fire and Rescue Department (“Leland”) and her former supervisor, John Grimes (“Grimes”), alleging that the defendants fired her because she spoke out about and reported sexual harassment. The defendant Grimes moved to exclude the Read Receipt that was automatically generated by his email account and argued that it was unauthenticated hearsay. The court rejected defendant’s argument and questioned whether a read receipt email was a statement that was intended to be an assertion under the Federal Rules of Evidence (“FRE”). The court ruled that even if the read receipt was a statement, it would be admissible because “the statement was created from defendant Grimes official email address, and defendant Grimes was required, as a function of his job, to investigate and respond to complaints of harassment.” Additionally, the court held that the Read Receipt did not need to be authenticated by a technical affidavit under the FRE because the reliability of the defendant’s email was not at issue. The email

was admitted as a statement of a party opponent, which did not require reliability. See, Joshua Gilliland, Are “Read Receipt” Emails Hearsay?, (Bow Tie Law’s Blog 3/25/15) [https://bowtielaw.wordpress.com/2015/03/25/are-read-receipt-emails-hearsay/]

How about Google Earth? In US v. Paciano (2015 US App LEXIS 10256 [USCA 9th Cir Jun 18, 2015]) the defendant was charged with re-entering the country illegally after he was removed in 2012. At trial, the Government typed into Google Earth the GPS coordinates given by border patrol agents to demonstrate the location of the arrest. The defense argued that the resulting satellite image and digital “tack” on the map were impermissibly hearsay. The court held that “[b]ecause a satellite image, like a photograph, makes no assertion, it isn’t hearsay.” Further, While the court acknowledged that machine statements are open to malfunction, tampering and inconsistent results but those concerns are to be “addressed by the rules of authentication, not hearsay.” Erin Harrison, Federal Appeals Court OKs Google Earth-Generated Evidence, (06/19/2015) [http://www.legaltechnews.com/printerfriendly/id=1202730018198]

Photos Very popular – especially gangs and guns. Not a statement offered for truth, but subject to 404(b) bad acts rule or 403 prejudice.


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US v Castillo, (409 Fed. Appx. 250, 2010 US App. LEXIS 24262 [USCA 11th Cir, Nov 23, 2010]). This was an appeal of a conviction for a firearms offense based on theory that the Myspace page offered was more prejudicial than probative. The defendant was charged with possessing an unregistered short-barreled rifle not identified by a serial number and a machine gun receiver. These items were discovered by defendant's parole officer who was alerted of the weapons by the defendant’s ex-mother-in-law, who saw pictures of the defendant on Myspace holding an assault rifle and displaying his middle finger. Defendant's Myspace page also contained postings of expletives and threats against his ex-wife and her family. The District Court admitted the evidence from his Myspace page at trial. The court held that the picture evidence of the defendant holding an assault weapon to be probative of the issue at trial as to whether the defendant possessed illegal firearm. Since Castillo knowingly possessed such a weapon in his residence by prominently displaying it online, the picture tended to make his possession of the illegal firearms more probable than it would be without the evidence. The court was dismissive of any prejudice the Myspace profile would bring the defendant stating that the District Court directed the jury towards the evidence's probative value and away from its prejudicial value. & Videos: Judge Kiyo Matsumoto of the USDC (EDNY) ruled that a YouTube video depicting defendants with firearms, cash and drugs was admissible in the criminal trial against them. In its ruling, the court found that the videos were highly probative of the crimes charged – weapons, narcotics trafficking and money-laundering charges. However, the defendant was given leave to offer evidence that the weapons, cash and drugs were props, with the jury making the ultimate decision as to how much weight to give the video. John Marzulli, EXCLUSIVE: Brooklyn Drug Gang's YouTube Hip-Hop Videos Can Be Used in Trial, Judge Rules (NY Daily News, 4/18/15) [http://www.nydailynews.com/new-york/nyc-crime/exclusive-brooklyn-drug-gang-hip-hop-videos-trial-article-1.2189715]

Instant Message People v Pierre, (41 AD3d 289 [App Div, 1st Dept 2007], lv denied 9 NY3d 880 [2007]). The issue was whether an internet "instant message" was properly received as an admission against the defendant. The court noted that "[a]lthough the witness did not save or print the [instant] message, and there was no Internet service provider evidence or other technical evidence in this regard, the instant message was properly authenticated, through circumstantial evidence, as emanating from defendant." Additionally, "[t]he accomplice witness, who was defendant's close friend, testified to defendant's screen name. The cousin testified that she sent an instant message to that same screen name, and received a reply, the content of which would make no sense unless it was sent by defendant. Furthermore, there was no evidence that anyone had a motive, or opportunity, to impersonate defendant by using his screen name."


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Texts

A judge determined that texts from the defendant’s phone wouldn’t be suppressed in his trial for aggravated vehicular homicide. The prosecution wished to use texts messages to establish the criminal intent of recklessness through previous conversations about smoking marijuana and driving and speeding on prior occasions. The defendant argued that the phone was illegally seized and therefore inadmissible. The judge ruled that the phone was admissible because the record shows that the phone was recovered from the front seat of the car after the wreck. Bridget Murphy, Judge in Joseph Beer case Denies Suppression of Text Messages (Newsday.com 5/14/2014) [http://www.newsday.com/long-island/nassau/joseph-beer-case-judge-denies-suppression-of-text-messages-1.8018575]

In People v Green, 107 AD3d 915 [App Div 2nd Dept 2013] the texts sent from the defendant to the complainant were properly admitted as evidence since the content of the messages “made no sense unless [they were] sent by defendant.” The text messages were sufficient to authenticate that they were sent by the defendant. Secondly the defendant’s testimony indicating that the photographs were actual photographs of the screen of her phone, and that she had seen the officer take the photos was sufficient to establish that the texts had been fairly reproduced, thereby providing a foundation for admission.

A New Jersey Superior Court judge ruled that text messages sent by the defendant could be used against her in her trial for murdering her newborn baby. The text messages were between the defendant and a friend. In them, the defendant spoke about the cost of an abortion, her wish for a miscarriage and the fact that she took a large dose of birth control pills. The judge ruled that the messages demonstrated the defendant’s state of mind about the prospect of giving birth and were therefore relevant to motive and intent. Court: Texts can be used against mom charged in baby’s death (Washington Times, 2/3/15) [http://www.washingtontimes.com/news/2015/feb/3/court-texts-

can-be-used-against-mom-charged-in-bab/]; State of New Jersey v. Barry, (2015 NJ Super. Unpub. LEXIS 182 [Superior Court of NJ, Appellate Division, 2015]).

The defendant challenged the admission of text messages sent from her telephone to the victim’s telephone. The court affirmed the Commonwealth’s judgment that a “considerable circumstantial evidence served to authenticate the text messages.” The court held that the text messages were properly admitted into evidence because: 1. the messages were sent from the defendant’s telephone; 2. the victim testified that she recognized the defendant’s voice on voicemail messages and did not know of other people to have used the phone; and 3. the content of the text messages referred to the history between the defendant and the victim. Commonwealth v. Grace, (2014 Mass. App. Unpub. LEXIS 199, 84 Mass. App Ct 1136 [Mass App Ct Feb 19, 2014])

However, many criminal investigators and litigation support practitioners utilize screen captures of social media content without realizing that prevailing case law now precludes such evidence from being admitted. For example, in Moroccanoil vs. Marc Anthony Cosmetics (2014


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U.S. Dist. LEXIS 158788 [US DC CD California, Sept 16, 2014]), plaintiff sued the defendant for, inter alia, trademark infringement. The defendant sought to introduce screenshots from the plaintiff’s Facebook page wherein customers utilized the trademarked name “Moroccanoil” and “Moroccan Oil” interchangeably. The court ruled that the screenshot of the Facebook page was inadmissible without circumstantial evidence to corroborate the authenticity of the content contained therein. The court also ruled that the Facebook page could not be authenticated by the person who went to the website and printed out the page. John Patzakis, Social Media Evidence Law Update: Numerous Recent Decisions Disallow Social Media Screen Prints as Evidence (eDiscovery Law and Tech Blog, 12/9/13) [http://blog.x1discovery.com/2014/12/09/social-media-evidence-

law-update-numerous-recent-decisions-disallow-social-media-screen-prints-as-evidence/]

Emoji ☺☞☹.

A reporter who was investigating the black market for drugs on Instagram contacted an individual (under a pseudonym) and attempted to buy drugs as part of his investigation. After the reporter stopped responding to the drug dealer, the dealer posted a screenshot of the reporter’s Instagram account along with emoji icons depicting a face with X’s for eyes and a gun pointing at the face. (For the uninitiated, Emoji’s are cartoon-like icons used to convey feelings and messages in lieu of words.) Whether or not this constitutes a crime depends on whether a reasonable person would have been threatened by the icons. See, Rebecca Hiscott, Yes, Emoji Death Threats Are Admissible in Court, (Mashable.com 1/16/14) [http://mashable.com/2014/01/16/emoji-death-threat/]

During the trial of Ross Ulbricht, creator of the underground contraband website Silk Road,

the presiding judge had to rule on the issue of emojis contained in internet posts. The post, “I’m so excited and anxious for our future, I could burst,” contained an emoji following the sentence. The judge ruled that the jury would be instructed to consider any such symbols in messages. Lisa Needham, It Has Come to This: Arguing About Emoji in the Silk Road Trial (Lawyerist, 1/30/14) [http://lawyerist.com/80321/come-arguing-emoji-silk-road-trial/]

And Emoji’s might even result in an arrest. A Brooklyn teenager was arrested after a series of Facebook statutes containing emoji of police officers with guns pointed at their heads along with comments such as “[Expletive] run up on me, he gunna get blown down” and “Been jaxkin kingkkk sinxe the 5th grade.” The teen was charged with making a terroristic threat. Enforcement does not seem to be universal, as evidence by the case of Anita Sarkeesian, who has received threats of a similar nature, yet no arrests have been made despite a greater frequency of attacks. Emojis Can Now Get You Arrested, Unless You’re Threatening A Woman In Tech Apparently (The Mary Sue, 2/13/15) [http://www.themarysue.com/emoji-law/]


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Credibility/Cross-Examination A San Francisco woman claimed to have been beaten up by the defendant. The woman said the defendant had forced her into prostitution. She testified under oath that she herself was not a pimp and was only a prostitute, but that the defendant assaulted her by pulling her hair, and throwing her to ground and punching her in the head after she had a meeting with a john that went badly. The defendants’ lawyer cross-examined her with her Facebook bio information in which she proclaimed her prowess as a “pimptress,” and that she double-majored in “Advanced Pimpin,” and “keepin hoes in LINE!!!” Her profile also said she worked as a self-employed “head pimptress in charge.” Sam Laird, Advanced Pimpin’ on Facebook Derails Woman’s Legal Case (Mashable.com 7/26/12) [http://mashable.com/2012/07/26/advanced-pimpin-facebook/]

Case Examples of Authentication & Admission or “Can’t Admit Without It Being Shown To

Be Authentic”

American Express Centurion Bank v Badalamenti, 30 Misc 3d 1201[A], 2010 NY Slip Op 52238[U] (Nassau Dist Ct, Dec. 21, 2010) In determining whether the custodian of records' affidavit laid a proper evidentiary foundation for summary judgment, the court reviewed, among other statutes, CPLR Rule 4518 (the Business Record Rule) and CPLR Rule 4539(b), as well as State Technology Law § 306. The court found plaintiff’s affidavit insufficient where, while it stated that the copies generated in support of the motion were "exact duplicates of the documents delivered to defendant," it failed to establish "when, how or by whom" the electronically-stored documents were created, nor did the affidavit set forth whether the record-keeping system permits "additions, deletions or changes without leaving a record" of them, and how plaintiff prevents "tampering or degradation" of the reproduced records. As such, the affidavit was insufficient, as it did not offer "personal knowledge of the care and maintenance" of plaintiff's electronic records.

Rombom v Weberman, (2002 NY Slip Op 50245[U] [Sup Ct, Kings Co, June 13, 2002]).

Defendants moved for a new trial and to set aside a judgment against them for libel and defamation. Plaintiffs, in the first trial, submitted evidence in the form of e-mail communication from defendants to plaintiffs. Defendants argued that, inter alia, the e-mails were unsworn and unauthenticated, and thus, were improperly admitted into evidence. The court disagreed, stating that (1) since defense counsel did not object to admission of the e-mails sent to plaintiff, this argument may not serve as the basis for his motion for a new trial; (2) because the e-mails were submitted by plaintiff to attest to their effect upon him, and not to demonstrate the truth of their content, the e-mails were not hearsay; and (3) the e-mails were admissible because plaintiff testified that he personally retrieved them from a web site, printed them, and that they were true and accurate copies.

Rosen v Evolution Holdings, LLC, (24 Misc 3d 1205[A], 2009 NY Slip Op 51275[U]

[Nassau Dist Ct, Jun 24, 2009]) Where responding party failed to contest the validity of


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text messages that were offered by movant on Rule 3211(a) motion papers to prove the existence of a lease, the text messages were deemed admitted.

In Re Vee Vinhnee (336 BR 437 [US Bankruptcy App Panel 9th Cir 2005]). The proponent

of evidence failed to submit sufficient evidence to authenticate records and satisfy the business records exception to the hearsay rule. The court suggested that admissibility requires a more detailed foundation to satisfy the question of what has, or may have, happened to the computer record in the interval between creation and trial. The court utilized the eleven Imwinkelreid factors, which were named after the professor who suggested them, in order to lay a foundation for the admissibility of metadata. They include: 1) The business uses a computer; 2) the computer is reliable; 3) the business has developed a procedure for inserting data into the computer; 4) the procedure has built in safeguards to ensure accuracy and identify errors; 5) the business keeps the computer in a good state of repair; 6) the witness had the computer readout certain data; 7) the witness used the proper procedures to obtain the readout; 8) the computer was in working order at the time the witness obtained the readout; 9) the witness recognizes the exhibit as the readout; 10) the witness explains how he or she recognizes the readout; 11) if the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.

Still Cannot Be Unduly Prejudicial A judge ruled against allowing the defense to use a woman’s text messages to provide the jury with possible insights into her character. The defense wanted to use the texts to support the case that the defendant was acting in self-defense when he shot and killed an unarmed woman on his porch. The defense believed that the texts and cell phone pictures would show that the woman was a drug dealer who had a penchant for getting into trouble and not as innocent as the prosecution painted her to be. The defense also claimed that the texts would show that the woman was out dealing drugs when she arrived in the early hours of the morning on the front porch of the Dearborn Heights resident Theodore Wafer. The prosecution argued that the contents of the cellphone were irrelevant because the case was about what Mr. Wafer knew and what he believed the situation to be, not about the contents of her phone. The judge denied the use of the texts as being “unfairly prejudicial.” Tresa Baldas, Teen’s Texts Ruled out in Porch-Shooting Case (USA Today 6/27/2014). [http://www.usatoday.com/story/news/nation/2014/06/27/teens-texts-ruled-out-in-porch-shooting-case/11568441/]

Useful Guide for the Admissibility of ESI

The Sedona Conference Commentary on ESI Evidence and Admissibility (2008) (This and many other very informative materials on www.thesedonaconference.org). To say it is a “must go” link is an understatement.


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For Further Information

United States District Court for the District of Delaware Default Standard for Discovery of Electronic Documents, Standard 2 (Discovery Conference).

[http://www.ded.uscourts.gov/Announce/Policies/Policy01.htm]

The Sedona Conference® Cooperation Proclamation: Resources for the Judiciary (October 2012) [https://thesedonaconference.org/judicial_resources]

United States District Court for the District of Kansas Guidelines for Discovery of

Electronically Stored Information, Guideline 4 (Duty to meet and confer regarding electronic information).

[http://www.ksd.uscourts.gov/guidelines/electronicdiscoveryguidelines.pdf]

United States District Court for the District of Maryland Suggested Protocol for the Discovery of Electronically Stored Information, Protocol 4 (Conference of Parties and Report). [http://www.mdd.uscourts.gov/news/news/esiprotocol.pdf]

United States District Court for the District of New Jersey Local Civil Rule 26.1 (d)

(Discovery of Digital Information Including Computer-Based Information). [http://www.njd.uscourts.gov/rules/completeRules2011.pdf]

R. J. Hedges, Rule 26(f): The Most Important E-Discovery Rule, NEW JERSEY L J (May 18,

2009). The Sedona Conference® "Jumpstart Outline" (2011). [http://www.thesedonaconference.org/dltForm?did=jumpstart_outline.pdf]

Anita Ramasastry, Facebook and Myspace Postings in Court: In a Lawsuit, Privacy Settings May Not Matter (Findlaw 9/29/10) [http://writ.news.findlaw.com/ramasastry/20100929.html]

Frank J. Lombardo, Facebook: Friend or Foe in Personal Injury Litigation? (NYLJ

10/3/12).

Bruce E. Boyden, Oversharing: Facebook Discovery and the Unbearable Sameness of Internet Law, 64 Arkansas L. Rev. 39 (2012).

James Ryan, How to Navigate Social Media Discovery in New York, (JD Supra Law News

1/22/13). [http://www.jdsupra.com/legalnews/how-to-navigate-social-media-discovery-i-48098/]

Sandra Hornberger, Social Networking Websites: Impact on Litigation and the Legal

Profession in Ethics, Discovery, and Evidence, 27 TOURO LAW REVIEW: No. 2, Article 5. Available at: http://digitalcommons.tourolaw.edu/lawreview/vol27/iss2/5

Hon. Matthew A. Sciarrino, Jr. © 2013-2014 Social Media Law Lecture Materials

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Chapter 13: Juror Issues

As we previously discussed, juror selection is an extremely important aspect to any trial

and many lawyers are resorting to social media to learn as much as they possibly can in order to select a jury that favors their case the most. The ABA has determined that researching jurors through their social media accounts is ethical, even after the jury selection process. The New York Bar Association said in 2010 that any notice sent to a juror about being searched amounts to unauthorized communication, but this was contradicted when the ABA determined that viewing a person’s LinkedIn profile was ethically sound even though the website would notice the user that their profile had been viewed. Furthermore, there is a generally held consensus that a person has the right to know when someone is gathering personal information or conducting a background check but there is a lack of communication on just how much research is being conducted on a potential juror. It seems that the basic rights of protection granted to citizens outside the court house do not necessarily apply when a person is being considered as potential juror in a particular case. A juror’s privacy rights lie in the discretion of the presiding Judge, but with the wide variety of opinions about privacy rights amongst Judges it’s hard to know for sure how much of a juror’s personal life will be exposed for the public to see. Daniel Solove, Being a Juror Can Result in a Huge Loss of Privacy (7/23/2014) [http://www.linkedin.com/today/post/article/20140623053954-2259773-being-a-juror-can-

result-in-a-huge-loss-of-privacy]. Additionally, we have the issue of Juror Misconduct…

Federal Justice Center survey of 508 federal district court judges across the country:

94% judges adopted measures to prevent juror from misusing social media 30% cases judge removed juror Over 13% cases resulted in mistrial

(http://www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf)

In a study, jurors and alternates disclosed that they had engaged in juror misconduct, but only old-fashioned forms of misconduct such as premature discussions with other jurors (10% of jurors and alternates) and face-to-face or telephonic discussions with family and friends about the trial (6%). The authors note that this was a preliminary study, and that additional research is needed. “These tentative findings encourage cautious optimism that the frequency of juror misconduct involving new media currently is less than one might imagine based on the number of recent news media accounts of jurors run amok,” but add that “[t]he pilot study findings are less optimistic about the future...As younger cohorts join the jury pool, access to the Internet and reliance upon it for information-gathering can only increase. Judges and lawyers therefore can expect to see jurors’ desire to use these tools increase in coming years, and they will have to take more effective steps to convince jurors to forgo these tools in the interest of fairness to litigants. A key factor will be the degree to which jurors continue to believe that the testimony of witnesses, especially expert witnesses hired by the parties, is more compelling evidence than what they can uncover on their own through information available to them via the Internet. (See, Paula

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Hon. Matthew A. Sciarrino, Jr. © 2013-2014 Social Media Law Lecture Materials

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Hannaford-Agor et al, Juror and Jury Use of New Media: A Baseline Exploration [2012]). [http://www.ncsc-jurystudies.org/What-We Do/~/media/Microsites/Files/CJS/New%20Media%20Study/NCSC-Harvard-005-Juror-and-Jury-Use-

of-New-Media-Final.ashx] In a recent survey of U.S. district court judges, only 33 of the 494 respondents indicated that they detected problematic social media use by a juror. However, the results indicated that a handful of jurors divulged confidential information about a case over social media. Inappropriate use was often reported by other jurors, court staff or attorneys. Penalties ranged from a reprimand to removal from the jury to the juror being found in contempt of court. The best way to ward off such behavior was to explain to the jurors in plain language why social media use is banned. Marlisse Silver Sweeney, Jurors Not Hot on Tweeting at Trial, (Law Technology News, 7/29/14) [http://www.lawtechnologynews.com/id=1202665168555/Jurors-Not-Hot-on-Tweeting-at-Trial?slreturn=20140728125951]

As access to social media and other internet resources becomes easier there is a rising trend of cases being dismissed or vacated do to juror misconduct. Access to information is readily available to jurors through search engines such as google or Wikipedia, jurors have been using these sites, obtaining outside information regarding the case or getting incorrect or conflicting legal information that could result in an unfair trial. In order to address this concerning trend, the courts have begun to admonish jurors more frequently and with specific language that focuses on the use of the internet resources and social networking sites. Richard Dollinger suggests that current statutes should be amended to specifically combat internet based juror misconduct. For now, it is up to judges and counselors to remain alert as to the potential for improper internet use and juror misconduct. Furthermore it is the responsibility of the judges and counselors to continually and repeatedly inform and remind jurors of their responsibilities and duties to refrain from the improper use of the internet in order to maintain fairness in the court (Richard Dollinger, Social Media’s Threat to the Jury System [NYLJ 10/28/2013]). A company Jury Scout.com claims that it “can monitor jurors social networks…” and “compile information to create ‘a personal matrix of information for each juror” and can anticipate whether a juror will pose a threat to the case.” In Zoe Tillman’s study, (see, Study Urges Judges to Address Jurors’ Social-Media Use [National Law Journal 3/18/2014]) Tillman suggests that judges should aim to curb the social-media use problem head on through their instructions to jurors. In a survey conducted by US District Judge Amy St. Eve and Illinois Northern District Judge Charles Burns, hundreds of jurors over the course of three years were asked about the temptation to use social-media to communicate about a case. An initial survey in 2011 showed that only 8 percent of jurors felt the temptation to communicate about the case using social-media, furthermore 45 of the 47 jurors who were tempted stated that they did not act on their temptation because the judge’s instructions made it clear that they were not to. St. Eve and her colleagues suggest that clear and specific instructions that are given repeatedly have a strong positive impact on jurors. According to St. Eve These technology specific instructions coupled with the jurors’ oath have proven to be highly effective in preventing the improper use of social-media, suggesting that all judges should make a point to include these measures in their court rooms. [http://www.nationallawjournal.com/id=1202647399134/Study-Urges-Judges-to-Address-Jurors'-

Social-Media-Use?slreturn=20140513085940]


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Case Examples:

o Wardlaw v State, (185 Md App 440 [Ct of Sp App, 2009]) The defendant was

convicted of three counts of Assault in the Second Degree by a jury in the Circuit Court of Baltimore City. Defendant appealed on the grounds of juror misconduct. The court held that: 1) juror’s internet research on Oppositional Defiant Disorder (ODD), and her subsequent reporting of her finding, rightly or wrongly, that lying was associated with the disorder, constituted egregious misconduct; and 2) after it was discovered that juror had done internet research on ODD, which was a disorder that victim had, it was incumbent upon trial court to voir dire jurors to determine whether they could still render impartial verdict based solely on evidence presented at trial.

o Russo v Takata Corp, (774 NW2d 441 [SD Sup Ct, Sep 16, 2009]) Defendants, the manufacturers of seatbelts and buckles, were sued in a wrongful death action started by the parents of a decedent who died after being thrown from a vehicle during a car accident. The defendants prevailed at trial. The defendants appealed an order of the Circuit Court of the Seventh Judicial Circuit, Pennington County, South Dakota, that granted the plaintiff’s motion for a new trial on the basis of juror misconduct and that vacated the judgment in favor of the defense. During jury deliberations, a juror revealed that he, before jury selection, had done internet research regarding the manufacturers and learned that they had not previously been sued for any defects in their seatbelts and buckles. When another juror admonished the jurors that they were not allowed to consider extrinsic materials, the matter was dropped. On review of the circuit court order, the Court held that the information obtained by the juror constituted extraneous information under South Dakota law and directly contradicted evidence admitted at trial under a limiting order. Further, the information was not obtained by the juror in passing but was obtained by him through a specific internet search conducted after he received a summons to possibly serve on a jury in a matter involving the manufacturers. Because six jurors learned of this information and deliberated for another 90 minutes, the effects of the extrinsic information likely continued through the deliberations, resulting in possible prejudice to the parents. The Court therefore affirmed the order granting a new trial and vacating the judgment in favor of the defendant.

o United States v Lawson, (677 F.3d 629 [USCA 4th Cir, 2012]). Defendants were convicted of violating, and conspiring to violate, the animal fighting prohibition of the Animal Welfare Act. Several defendants also were convicted of participating in, and conspiring to participate in, an illegal gambling business. The US District Court for the District of South Carolina imposed sentence. Defendants appealed. The district court was informed after the verdict that one of the jurors had researched the definition of one element of the animal fighting offense on Wikipedia during an overnight recess. Although the district court found that there was juror misconduct, it was concluded that the defendant was not prejudiced by the misconduct and denied the defendant’s motion for a new trial. The appellate court, however, held that the juror’s misconduct violated the right to a fair trial. In


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addition to the problem of an "extraneous influence," the court expressed concern about the reliability of Wikipedia entries, where largely anonymous Internet volunteers can write and make changes to Wikipedia articles (except where editing is restricted to prevent disruption or vandalism). Ironically, in a footnote the appellate court admitted that it had itself cited Wikipedia as a resource in three cases. The defendants’ convictions were vacated.

o Pennington v Bickell, (2012 US Dist LEXIS 57072 [USDC WDPA, Apr 24, 2012]) A federal district judge in Pennsylvania adopted a US magistrate judge's decision denying a petition for writ of habeas corpus from a state court conviction for murder. The petitioner argued that a state juror did Internet research on the definitions of different degrees of homicide. In an evidentiary hearing, the juror testified that she accessed the Internet at her home during a recess in deliberations and found that the definitions were the same as those given by the trial judge during final instructions. She did not print out the definitions from the Internet site or share the information with other jurors. The trial court found that the defendant failed to establish prejudice from the juror's behavior.

o State of Vermont v Abdi, (45 A3d 29 [VT Sct, 2012]) The Vermont Supreme Court

reversed a conviction for sexual assault on a child. The defendant was a Somali Bantu immigrant and most of the witnesses were Somali Bantu. One of the jurors, while at home, researched about the Somali culture and religion and shared that information with other jurors. Because the Somali Bantu religion and culture “lay at the heart of this case,” the court could not conclude that the outside information had no impact on the verdict. The court noted “the increasing problem of jurors consulting the Internet for outside information,” citing an ALR 6th Annotation, “Prejudicial Effect of Juror Misconduct Arising From Internet Usage.” Although Vermont trial courts routinely admonish jurors not to consult outside sources, the court suggested it was time to consider “a stronger and more technology-specific admonition similar to the standard instruction employed...” in other jurisdictions.

o State v Dellinger (225 W VA 736, 696 SE2d 38 [Sup Ct of App WV 2010]). The

defendant appealed his conviction for falsifying time records on the grounds of juror misconduct. A hearing on juror misconduct revealed that a juror had failed to inform the court during voir dire that she and the defendant were Myspace friends. This allowed the juror and defendant to view all postings on their Myspace pages. The jurors were asked during voir dire if they had any business or social relationship with the defendant to which the juror remained silent. In fact, the juror sent the defendant a message on Myspace a week before defendant's trial began. The court concluded that the witness could not have been considered indifferent and unbiased due to their Myspace "friendship" and therefore ordered a new trial.

o US v Fumo (655 F3d 288 [USCA 3d Cir, 2011). Appeal of the conviction of former

Pennsylvania state senator as a result of, in part, juror misconduct. During jury deliberations a local television station reported that one of the jurors had made postings on his Facebook and Twitter pages related to the trial. Upon realizing the news was reporting on his posts he subsequently deleted them. However, the


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court found the posts to be "vague and harmless ramblings" and thus did not result in substantial prejudice of the defendant. However, the court noted that "the risk of such prejudicial communication may be greater when a juror comments on a blog or social media website than when she has a discussion about the case in person, given that the universe of individuals who are able to see and respond to a comment on Facebook or a blog is significantly larger." See Also, Joel Stashenko, Guilty Verdict in Murder Case Stands Despite Juror’s Texts, (NYLJ 06/30/15); State v. Neulander, (173 NJ 193 [2002])

o

o Vishnu Singh was a juror in a Florida capital murder trial in Hillsborough Circuit Judge William Fuente’s courtroom until Oct. 10, when it was discovered that Singh had Googled the defendant on a break, violating the Judge’s written order to the jury to not research or talk about the case. Judge Fuente kicked Singh out of the courthouse and told him to expect a jail sentence. (See, Juror Faces Jail Time for Googling Defendant [Lawyers.com 11/6/12]).

[http://blogs.lawyers.com/2012/11/juror-faces-jail-googled-defendant/]

o Federal judge in Florida reduced reggae star Buju Banton’s sentence for drug conviction because of online research by jury foreman during trial. Judge found cause to believe that foreman was doing research about federal case law on Pinkerton doctrine, which permits member of criminal conspiracy to be held responsible for acts committed by other members. In Banton’s case, issue was whether he could be liable for gun carried by another person. Jury foreman claimed research took place post-trial. Not clear to what extent jury was influenced by research. Martha Neil, Reggae Star’s Sentence Cut After Judge Concludes Jury Foreman did Web Search, (ABA Journal, 6/26/13). [http://www.abajournal.com/mobile/article/reggae_stars_sentence_cut_after_judge_concludes_jury_foreman/]

o A Florida man was thrown off a jury and charged with contempt of court after conducting a Google search on the case in defiance of the judge’s admonishment. The case was a manslaughter retrial of a Florida polo tycoon and the venue had been changed to avoid jurors knowing about the previous trial. Still, the prospective juror couldn’t help himself and admitted that he conducted a Google search on the case after he was confused by some questions asked during jury selection. The prospective juror’s actions were uncovered after a defense assistant overheard him telling another juror what he learned through his Google research: that the case had been tried before. John Goodman trial: Juror Arrested On Contempt Of Court Charge Apologizes, (Sun Sentinel, 10/10/14) [http://www.sun-sentinel.com/local/palm-beach/fl-

goodman-juror-contempt-20141009-story.html]

o In U.S. v. Liu, the defendants were convicted of one count of conspiracy to commit immigration fraud by a jury in the U.S. District Court (SDNY). The defendants requested a new trial on the grounds of juror misconduct, arguing that the juror lied about posting about her jury service on Twitter, the juror disobeyed the Court’s instructions not to tweet, and that the juror’s tweets revealed bias against them. As


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a result, the defendants claimed that they were deprived of their Sixth Amendment right to a trial by impartial jury. The court denied the motion and held that 1) the juror was never specifically asked whether she had discussed the case on social media and she answered truthfully when she stated that she did not communicate with other jurors in person or on social media; 2) the jury was only instructed not to discuss the substance of the case on social media and the juror only discussed her experience as a juror; and 3) the mere fact that a juror wanted to communicate with judges, prosecutors and witnesses does not establish bias. U.S .v Liu, (2014 US Dist Lexis 160727 [US DC SDNY, Nov. 14, 2014]); Social media is a “”major problem for trial lawyers’ because, at the stroke of a key”, jurors can look up information about anyone. “’In the age of the Internet, it is impossible for us to police what juries are researching online, whether it’s about the defendants, or the attorneys, the judge, or the witnesses.’” Mark Hamblett, Defendants Not Biased by Juror’s Tweets. Judge Finds, (NYLJ 11/19/14).

o According to released court documents, the juror who caused the second hung jury

in the penalty phase of Jodi Arias’ trial, had watched a TV movie about Ms. Arias and also “liked” news stations on her Facebook feed. This revelation nearly caused the juror to be eliminated from the panel. She remained on the panel, however, and refused to vote for the death penalty resulting in the death penalty being taken off the table completely. Sasha Goldstein, Jodi Arias Trial Juror Who Refused to Vote For Death Penalty Had Watched TV Movie on Killer, Followed News Stations On Facebook (NY Daily News, 3/11/15) [http://www.nydailynews.com/news/crime/jodi-arias-holdout-

death-row-juror-dropped-panel-article-1.2145180]

A Judicial Conference Committee updated the model set of jury instructions (both pre-trial and at the close of the case) federal judges use to deter jurors from using social media to research or communicate about cases on which they serve. For the instructions go to: http://www.uscourts.gov/uscourts/News/2012/jury-instructions.pdf

New York Judges have had such an instruction as part of their model preliminary charge

since 2009 - For a copy of those instructions go to: http://www.nycourts.gov/judges/cji/1-General/CJI2d.Jury_Admonitions.pdf

Juror Number One v Superior Court, (206 Cal App.4th 854 [Ct of App 3rd App Dist 2012]).

Following conviction of criminal defendants, the court held a hearing on juror misconduct and ordered a juror to execute a consent form pursuant to the SCA authorizing a social networking (Facebook) website operator to release to the court for in camera review all items the juror posted during the trial. Juror petitioned for writ of prohibition. The Court of Appeals denied the petition. The Supreme Court granted review and transferred the matter back to the Court of Appeals for further consideration. The Court of Appeals held that the SCA did not preclude trial court from compelling juror to consent to website operator’s disclosure of juror’s postings, and statutes governing disclosure of jurors’


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personal identifying information did not preclude trial court from compelling juror to consent to disclosure of postings.

Jodi Arias’ defense attorneys wanted to keep tabs on the jury that would decide the

defendant’s fate. Judge Sherry Stephens told the jury several times each day not to use their phones or any social media sites to communicate to anyone or conduct any independent research until after they were excused as potential jurors. However, Arias’ defense team argued the judge’s admonishment just wasn’t enough to ensure jurors wouldn’t be influenced by outside information. The attorneys argued the only way to monitor a jurors’ influence was for them access the jurors’ social media accounts. See Amanda Sloane, Arias Defense to New Jurors: Show Us Your Tweets! (HLN 8/22/13)

[http://www.hlntv.com/article/2013/08/22/jodi-arias-defense-motion-see-juror-tweets]

Showing PowerPoint to Jurors

In People v. Santiago (2014 NY LEXIS 385 [NY Ct App, Feb 25, 2014]) the defendant was convicted of manslaughter in the second degree for suffocating her step-daughter. The defendant then made a motion to dismiss on the basis of ineffective counsel. The defendant claimed that her prior counsel’s failure to make

an objection to the prosecutions use of a power point slide during the closing statements was improper and constituted ineffective counsel. The majority opinion held that since the objection was not made in the original trial, that they could not make a decision on whether or not the use of the PowerPoint during summation was improper. Although the court could not make a ruling on this matter, they indicated that the use of PowerPoint is not improper if the content of the

presentation is meant to be informative to the jury and not a means to manipulate the jury’s emotions for a favorable outcome. In this case, the slide show contained a postmortem picture of the infant that would appear on the screen then slowly fade away, then reappear again. The show lasted for six minutes and contained captions that indicated the various stages of the effects of suffocation in real time. The court discussed the merits of a PowerPoint and commented on proper and improper use, stating that slide shows meant to convey evidence and information to the jury were acceptable. In this case, the use of PowerPoint was questionable because the repeated flashing and fading of the postmortem picture was not used to convey new information or evidence and that the only possible reason for the show was to indicate the amount of time it would have taken to suffocate the child to support a charge of manslaughter in the second degree. The dissent notes that this argument severely downplays the severity of the inflammatory nature of the slideshow and that the repeated flashing of the picture was meant to have an emotional impact on the jury in order to color their options in favor of the prosecution.

Another thing a prosecutor should not do – Tweet about their jurors. After a jury trial ending in an acquittal, two Minnesota prosecutors took to Facebook to vent their frustration. One prosecutor posted that she was “spending her week with 12 idiots,” while the second prosecutor commented “A shining moment for Clay County! Wake up people!” The prosecutors were issued


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written reprimands and the County Prosecutor refused to rule out additional punishment. Victor Li, Two Prosecutors disciplined for criticizing jurors on Facebook, (ABA Journal, August 22, 2014), [http://www.abajournal.com/news/article/two_prosecutors_disciplined_for_criticizing_jurors_on_facebook/]

For Further Reading

Meghan Dunn, Jurors’ Use of Social Media During Trials and Deliberations - A Report to the Judicial Conference Committee on Court Administration and Case Management (Federal Judicial Center November 22, 2011). [http://www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf]

For $295, Jury Scout will monitor a prospective juror's public social-media profile to help

you decide whether that person would likely agree or disagree with your client's case. (See, Alison Frankel, For $295, a Window into Jurors' Posts and Tweets [Thomson Reuters News & Insights 10/24/11]). [http://newsandinsight.thomsonreuters.com/Legal/News/2011/10_October/For_$295,_a_window_into_jurors__posts_and_tweets/]

Michael Hoenig, Jurors’ Social Media and Internet Misbehavior, (NYLJ 5/21/12).

Bruce Carton, Life is an Open Book Unless You are a Juror, (Law.com Blog 5/14/12). [http://legalblogwatch.typepad.com/legal_blog_watch/2012/05/life-is-an-open-book-test-unless-you-are-a-juror.html]

Laurence Hammack, Judge: Charged Doctor, Linda Sue Cheek, Allowed to Speak Out, (The Roanoke Times 2/5/13) (Defendant allowed to continue blogging on her web site even though the blogs concerned the subject matter of the lawsuit as the blogs were not intended to threaten or intimidate a witness or juror). [http://www.roanoke.com/news/roanoke/wb/319911]

Peter Crusco, An Impartial Jury in the Milieu of Social Media Networks (NYLJ 10/23/12)

Richard Raysman and Peter Brown, Social Media Use and Researching Jurors in the Courtroom, (NYLJ 4/9/13).

Robert B. Gibson, Social Media and Jury Trials: Where Do We Stand?, (NYLJ 101/1/14).

There’s even a blog about juror’s not acting appropriately including many social media examples: Go visit http://jurorsbehavingbadly.blogspot.com/

See also, Eric Robinson, Study Finds Significant Juror Interest In Internet, But No Use -- Yet (Citizen Media Law Project 10/25/12) [http://www.citmedialaw.org/blog/2012/study-finds-significant-juror-interest-internet-no-use-yet]


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Chapter 14: Judge Issues

The majority of jurisdictions that have addressed this issue have concluded that it is generally permissible for judges to become online “friends” with attorneys appearing before them, as long as the judges are careful to avoid the appearance of impropriety, avoid ex parte communications, and otherwise ensure compliance with applicable ethical rules. (See, 2009 Advisory Opinion 08-176 of the New York Advisory Committee on Judicial Ethics, the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline Opinion 2010-7, and the 2010 Ethics Committee of the Kentucky Judiciary Opinion JE-119) In New York, so long as a judge complies with the Rules governing judicial conduct, he/she may join and make use of an internet-based social network. A judge choosing to do so should exercise an appropriate degree of discretion in how he/she uses the social network and should stay abreast of the features of any such service he/she uses as new developments may impact his/her duties under the Rules. New York State Judicial Ethics Opinion 08-176 (January 29, 2009).

New York State Judicial Ethics Opinion 13-39 (May 28, 2013). This ethics opinion is in response to the question as to whether a Judge must exercise recusal in a criminal matter because he is "Facebook friends" with the parents or guardians of certain minors who allegedly were affected by the defendant's conduct. The Committee believes that the mere status of being a "Facebook friend," without more, is an insufficient basis to require recusal. Nor does the Committee believe that a judge's impartiality may reasonably be questioned or that there is an appearance of impropriety based solely on having previously "friended" certain individuals who are now involved in some manner in a pending action.

The committee noted that a judge must “be mindful of the appearance created when he/she establishes a connection with an attorney or anyone else appearing in the judge’s court through a social network.” Thus, the judge must consider whether these online connections, “alone or combination with other facts” rise to the level of a relationship requiring disclosure or recusal. Furthermore, the committee determined that if the relationship with the defendant’s parents was only of an acquaintance, then recusal was not required. Yet the committee noted that should a

judge reach the decision that recusal is unnecessary then it would be advisable “make a record, such as a memorandum to the file, of the basis of your conclusion” although not mandatory, “may be of practical assistance to you if similar circumstances arise in the future or if anyone later questions your decision.” Nicole Black, Legal Loop: A Look at Judges, Facebook And Recusal, (The Daily Record 4/17/15) [http://nydailyrecord.com/blog/2015/04/17/legal-loop-a-look-at-

judges-facebook-and-recusal/]

For a discussion of most of the current state rules with regards to judges and social media see, Nicole Black, Fla. Judge Disqualified for Social Media Activities (The Daily Record 9/17/12)

[http://nylawblog.typepad.com/files/black-9.17.12.pdf] or g to: The National Center for Courts for State by State Social Media and the Court Developments: http://www.ncsc.org/Topics/Media/Social-Media-and-the-Courts/State

Links.aspx?cat=Judicial%20Ethics%20Advisory%20Opinions%20on%20Social%20Media&sf28981173=1

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Federal Judges (and Judicial Employees) have a Code of Conduct on the Issue. The use of social media by judges and judicial employees raises several ethical considerations, including: (1) confidentiality; (2) avoiding impropriety in all conduct; (3) not lending the prestige of the office; (4) not detracting from the dignity of the court or reflecting adversely on the court; (5) not demonstrating special access to the court or favoritism; (6) not commenting on pending matters; (7) remaining within restrictions on fundraising; (8) not engaging in prohibited political activity; and (9) avoiding association with certain social issues that may be litigated or with organizations that frequently litigate. Committee on Codes of Conduct, Advisory Opinion No. 112 [http://www.uscourts.gov/uscourts/RulesAndPolicies/conduct/Vol02B-Ch02.pdf]

North Carolina Supreme Court Justice Barbara A. Jackson (Chair of the Technology Committee of the Appellate Judges Conference) in her article To Follow or Not to Follow: The Brace New World of Social Media, (53 The Judge’s Journal 4 [Fall 2014]) has called for the judiciary to take a greater interest in the realm of electronic social networking media (ESM). Justice Jackson urges judges to reevaluate their “historic resistance” to the use of social media, but she also cautions of the risks involved with participating in social media.

The ABA, in formal opinion 462, (see more about this opinion below) attempts to advise judges of the risks inherent in ESM. Justice Jackson thinks this a good first step towards providing adequate rules governing a judge’s use of ESM, but she also found errors and inconsistencies within the opinion. In one place the opinion requires judges to disclose relationships, i.e. ESM connections, to the person prior to their appearance or at their initial appearance. The opinion also states that a judge is not required to “search all of the judge’s ESM connections if a judge does not have specific knowledge of an ESM connection.” These two statements appear to be directly in conflict with one another, points out Justice Jackson. She also remarks that many judges obtain their position on the bench through vastly different pathways and the guidelines should reflect that with a broader approach. A judge in an election campaign may rely on ESM differently than a judge who is appointed for life.

Justice Jackson calls for a better policy, with broader and clearer rules, governing a judge’s use of ESM. She discusses Justice Willett of the Texas Supreme Court, who has a prolific presence in ESM, and Professor Crowell of University of North Carolina, who have both spoken on the issue. Justice Willett says his cardinal rule of ESM is “I don’t throw partisan sharp elbows or discuss issues that could appear before the court.” Justice Willett also calls caution and self-censorship in using ESM.

Professor Crowell offers more extensive advice, with a list of guidelines:

1. Judges may join on-line social networks. 2. Social networks create opportunities and temptations for ex parte communications that

judges must be careful to avoid. 3. Judges are still judges when posting materials on their social networking pages and need

to realize that the kinds of comments and photographs posted by others may not be appropriate for them.


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4. Judges need to avoid on-line ties to organizations that discriminate, just as they are prohibited from joining such organizations.

5. Judges also need to avoid on-line ties to organizations that may be advocates before the court.

6. Judges need to avoid posting comments on social network sites or taking other actions on such sites that lend the prestige of the judge’s office to the advancement of a private interest.

Justice Jackson, after quoting Justice Alito’s dissent from Brown v. EMA regarding the evolution of technology, wants the judiciary to stay “engaged and understanding how various forms of ESM work.” While she does encourage throughout the article that judges should join and participate in ESM she closes with the cautioning remark “no matter what forum we are in, judges are still judges.”

In January 2015, the North Carolina State Bar Association issued a formal ethics opinion stating that lawyers and judges could connect on social media networks, just as they could interact offline. To that extent, online interactions are evaluated in the same manner that an offline interaction would be. The opinion therefore noted that if an attorney had a pending matter before a judge, the lawyer must: avoid conduct prejudicial to the administration of justice, not state or imply an ability to influence improperly a government agency or official and avoid ex parte communications with a judge regarding a legal matter or issue the judge is considering. This may require the lawyer to decline an invitation to connect. The opinion noted that receiving an

endorsement from a judge on LinkedIn could create the appearance of judicial partiality and therefore must be avoided or removed. Finally, any recommendations made by a judge prior to becoming a judge must be removed as well, Sui Generis – A New York Law Blog, North Carolina Weighs In On Judges And Social Media (4/22/15) [http://nylawblog.typepad.com/suigeneris/2015/04/north-carolina-weighs-in-on-judges-and-social-media-.html]

Facebook Friends in the Courtroom

According to an article, Florida’s Supreme Court may consider hearing a case involving recusal when a judge is Facebook friends with an attorney in front of him or her. According to the author, “The social media dilemma for judges began in 2009 with an advisory opinion from Florida's Judicial Ethics Committee which questioned the ethics of a judge who was a Facebook ‘friend’ with a lawyer. Why? The appearance of impropriety. According to the Committee, the public could see a lawyer who is a Facebook ‘friend ‘of a judge as being in a ‘special position to influence the judge.’ Following the opinion, many judges ‘unfriended’ lawyers they knew did or potentially could appear in their courtroom. Other judges took the advisory opinion as just that, an advisory opinion, not a mandate.” LaShawnda K. Jackson, Will The Florida Supreme Court Put An End To Lawyers And Judges Being Facebook “Friends? (Mondaq 1/24/13). [http://www.mondaq.com/unitedstates/x/217742/Industry+Updates+Analysis/Will+The+Florida+Supreme+Court+Put+An+End+To+Lawyers+A

nd+Judges+Being+Facebook+Friends]


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Domville v. State of Florida (103 So3d 184 [Fl Dist Ct of App 2013]). The defendant moved to disqualify a trial judge, alleging that the judge was a Facebook "friend" of the prosecutor assigned to his case. Defense counsel argued that his “friends” consisted of his “closest friends and associates, persons whom [he] could not perceive with anything but favor, loyalty and partiality.” The trial court denied the motion as legally insufficient. The District Court of Appeal reviewed the lower court's ruling de novo, and found an opinion of the Judicial Ethics Advisory Committee to be instructive. In that ethics opinion, the Committee concluded that the Florida Code of Judicial Conduct precluded a judge from both adding lawyers that appear before the judge as friends on social networking sites and permitting those lawyers to add the judge as a friend on a social networking site. The committee concluded that lawyers who are “friends” with judges on social networking sites are viewed to have a special position of influence over the judge. In this case, the court held that a reasonably prudent person would have a well-founded fear of not receiving a fair and impartial trial, therefore the order denying disqualification is quashed.

In Chace v Loisel, 39 Fla L Weekly 221 (Dist. Ct. App. Jan 24, 2014) the petitioner sought a writ of prohibition to quash the trial court’s order that denied her motion to disqualify the trial judge that presided over her marriage dissolution case. The petitioner alleged that while the case was in progress the trial judge sent her a friend request on Facebook. The petitioner continued to allege that after she denied the judge’s friend request the judge acted in retaliation by granting the respondent a disproportionately excessive alimony award. The District Court of Appeals found that the trial court erred in denying petitioners motion. The court found that it was bound to grant the petitioners motion under Domville v State, 103 So3d 184 [Fla. 4th DCA 2012] (where a judges Facebook friend-ship with a prosecutor of the underlying criminal case was sufficient to create a well-founded fear of not receiving a fair trial). A judge’s request to be added as a friend on Facebook is viewed as an attempt to establish ex parte communications which is prohibited by the Code of Judicial Conduct because it has the ability to under mind the confidence in a judge’s neutrality. In 2013, Connecticut judges were asked by their court administrators to not "friend" attorneys or law enforcement officials that appear before them, or make comments about any case, even those not in their courtroom (Todd Piro, How Conn. Judges Manage Social Media. NBC Connecticut [8/5/13]) [http://www.nbcconnecticut.com/news/local/How-Conn-Judges--218451031.html]

In California, a Fresno County Superior Court Judge removed himself from a case because he was Facebook friends with one of the party’s lawyer. The defamed party that had won the case asked the Court of Appeals to overrule the judge’s self-disqualification. Judge Jeffrey Hamilton had informed both parties throughout the case that he was Facebook friends with one of the lawyers and had no idea that a comment he had posted months prior would lead to the current situation. The attorney for the winning side noted that Fresno is a small town and that the attorneys and judges know each-other. He continues to say that this was not really a question of the judge’s impartiality, but merely a litigation strategy used by the losing side. Robin Abcarian, Should a Judge’s Facebook Friendship Disqualify Him from a Case? (LATimes.com 03/24/2014).

In January 2015, the North Carolina State Bar weighed in on social media contact between judges and attorneys when it handed down its 2014 Formal Ethics Opinion 8. The issue was


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whether lawyers and judges with LinkedIn profiles could connect with each other and then issue endorsements and/or recommendations on each other’s profiles. The Committee determined that lawyers and judges can indeed connect with one another on LinkedIn as they noted that social media interactions are no different than in-person interactions. However, if a lawyer appears in front of a judge, the lawyer is subject to the following duties: (1) to avoid conduct prejudicial to the administration of justice; (2) to not state or imply an ability to influence improperly a government agency or official; (3) and to avoid ex parte communications with a judge regarding a legal matter or issue the judge is concerning. These duties may require the lawyer to decline the judge’s invitation to connect on LinkedIn. In regards to endorsements and recommendations on LinkedIn, it was determined that while lawyers may endorse or recommend a judge, judges may not do the same for lawyers. Furthermore, if the judge has made prior LinkedIn endorsements or recommendations before becoming a judge, he or she must remove those from their profile. Lastly, the Committee determined that lawyers may accept recommendations or endorsements from non-judges. However, it is only permissible as long as the content is truthful and not misleading. Nicole Black, Legal Loop: North Carolina Weighs in on Judges and Social Media, (The Daily Record 3/27/15) [http://nydailyrecord.com/blog/2015/03/27/legal-loop-north-carolina-weighs-in-on-judges-and-

social-media/]

A petition for certiorari requests the US Supreme Court to set a nationwide standard for

the use of social media and the appearance of impropriety. In a dispute that started out as a property issue and rose to come before the North Dakota Supreme Court (NDSC), Justice Daniel Crothers was listed as disqualified. When the case later reappeared in the NDSC, it was Justice Carothers who penned the decision. It was later revealed that Justice Carothers had previously served as defendant’s legal counsel when he was a partner at a private law firm. It was also discovered that another Justice, Justice Dale Sandstrom who wrote the first opinion and concurred on the second opinion, was Facebook friends with the prevailing litigant. It is unclear whether a previous client-counsel relationship or a Facebook friendship lends itself to an appearance of impropriety, which is why the Supreme Court is being asked to lend its view on what is appropriate when it comes to judges and their social media accounts. William Peacock, Judges’ Use of Social Media Before SCOTUS in Cert. Petition (Blogs Findlaw.com 04/14/2014). [http://blogs.findlaw.com/supreme_court/2014/04/judges-use-of-social-media-before-scotus-in-cert-petition.html]

Do we want Judges to be kept in a Social Media blackout? Convicted Ashanti stalker arrested after violating orders of protection when he sent tweets to the singer. In court the defendant railed at Justice Charles Soloman for not knowing about twitter. See, Shayna Jacobs, Ashanti Stalker Rails Against Twitter-clueless Judge in New York City Court (NY Daily News.com 02/05/2014), [http://www.nydailynews.com/new-york/nyc-crime/ashanti-stalker-rails-twitter-clueless-

judge-article-1.1602592] See also, Stephanie Rabiner, Do Judges Really Understand Social Media? (FindLaw's Technologist Blog 5/ 9/12) [http://blogs.findlaw.com/technologist/2012/05/do-judges-really-

understand-social-media.html]


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Researching on Facebook

Ferraro v. Hewlett-Packard Co., (2013 US App LEXIS 13569 [7th Cir. July 3, 2013]). Plaintiff purchaser sued defendant manufacturer (HP), asserting product liability and implied warranty of merchantability claims regarding a laptop computer power adapter. Plaintiff suffered burns on her arm after falling asleep next to the power adapter of her new laptop. Plaintiff alleged that her injury resulted from design defect that allowed power adapter to overheat. Circuit Judge questioned HP’s claim that plaintiff was not using power adapted as intended by manufacturer because adapter was designed to rest on a flat surface with ample ventilation. Appropriate inquiry instead was whether plaintiff used adapter in “intended or reasonably foreseeable manner.” Judge noted that virtue of laptop is that it can be used on one’s lap, sitting on the sofa, or while in bed. Judge pointed out that Facebook page for “Using the laptop in bed” (Mission: “Public awareness of the usage of laptops in bed”) has nearly one million “Likes.” Hence, jury could conclude that plaintiff was using power adapter in “reasonably foreseeable” manner when harm occurred. (See, Did the Court Just Look At Facebook On Its Own?, [Bow Tie Law’s Blog 7/ 17/13] [http://bowtielaw.wordpress.com/2013/07/17/did-the-court-just-look-at-facebook-on-its-own/]) Decision shows judge taking notice of number of “likes” on Facebook Fan Page. Facebook reference apparently was not argued by plaintiff’s attorney but would be properly cited by judge under Federal Rule of Evidence 201, which allows court to take “judicial notice” of fact that is “not subject to reasonable dispute” because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned” (Citing UCSC Fed Rules Evid R 201(a) and (b)).

Facebook “Court” Page

The NY Advisory Committee on Judicial Ethics has advised a town/village judge not to create a court website on Facebook. The committee previously advised that a town or village judge could “create and maintain an independent justice court website” if the judge felt that his court was not “adequately included on either the Unified Court System’s website or the local municipality website.” However, the committee found that Facebook had “a strong economic incentive to sell and display third-party advertisements in connection with his/her website, without consulting the user.” The committee stated that “a court’s institutional website should not display third-party advertisements, as they may create an appearance that the court itself is subject to outside influences or control and thereby undermine the court’s dignity and independence.” See, 2014 Advisory Opinion 14-05 of the New York Advisory Committee on Judicial Ethics.

The Blogging and Tweeting Judges Even as blogging has taken off within the legal profession, it remains rare to find judges who blog and even rarer to find federal judges who blog. Best-known blogger on the federal bench Judge Richard Posner (http://en.wikipedia.org/wiki/Richard_Posner) of the 7th U.S. Circuit of Appeals in Chicago, who has been co-author of The Becker-Posner blog


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(http://uchicagolaw.typepad.com/beckerposner) for nearly a decade. Reason may be that judges are constrained in what and how they can communicate, both by ethical rules and practical considerations. The atmosphere for blogging is even chillier in the U.K., where judges were warned last year that inappropriate blogging could result in disciplinary action. Robert Ambrogi, Blogging from the Bench, (Law Technology News, 7/23/13). [http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202611950137&thepage=2]

One of the better blogs is that of Judge Richard Kopf. He is a Federal Trial Judge sitting in the District of Nebraska. From trial issues, to thoughts on sentencing guidelines, to his own battle with cancer, Judge Kopf provides an insightful, candid and often humorous look into the world of a sitting Federal judge. Visit it at: http://herculesandtheumpire.com/ ABA Formal Opinion 462 (February 21, 2013):

The Feb. 21 opinion by the ABA Standing Committee on Ethics and Professional Responsibility acknowledges that “judicious use” of electronic social media—referred to as “ESM”—can be a valuable tool for public outreach. “When used with proper care, judges' use of ESM does not necessarily compromise their duties under the Model Code any more than use of traditional and less public forms of social connection such as U.S. Mail, telephone, email or texting,” according to the opinion.

Judges should not form relationships with persons or groups that may convey an impression

that these people and entities are in a position to influence the judge, the opinion says. Judges also should take care to avoid comments or interactions that may be interpreted as ex parte communications concerning pending matters. And they should avoid using social networking sites to obtain information about matters before them.

“Because of the open and casual nature of ESM communication, a judge will seldom have

an affirmative duty to disclose an ESM connection. If that connection includes current and frequent communication, the judge must very carefully consider whether that connection must be disclosed. When a judge knows that a party, a witness, or a lawyer appearing before the judge has an ESM connection with the judge, the judge must be mindful that such connection may give rise to the level of social relationship or the perception of a relationship that requires disclosure or recusal.”

See also, Debra Cassens Weiss, Should Judges Disclose Facebook Friends? ‘Context Is

Significant,’ ABA Ethics Opinion Says (ABA Journal 2/26/13) [http://www.abajournal.com/news/article/should_judges_disclose_facebook_friends_context_is_significant_aba_ethics_o/?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly]

Andrew Lu, Johnny Manziel's Speeding-ticket Judge Fumbles on Facebook, (Findlaw: Tarnished Twenty 1/22/13) [ http://blogs.findlaw.com/tarnished_twenty/2013/01/johnny-manziels-speeding-ticket-

judge-fumbles-on-facebook.html?DCMP=CCX-TWC] Heisman trophy winner Johnny Manziel (“Johnny Football”) was recently in court in Ennis, Texas for a speeding ticket. The Municipal Judge he appeared before referred to Manziel on Facebook by calling him a "a certain unnamed (very) recent Heisman Trophy winner," and further stated that "It appears that even though the [Oklahoma University]


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defense couldn't stop him, the Ennis PD is a different story altogether. Gig 'em indeed." The Judge may now face disciplinary action for his comments as it was in appropriate to publicly identify a ticket recipient.

o A Texas Judge resigned from the bench after she was caught texting prosecutors questions to ask during the course of a criminal trial. See, Texas Judge Resigns after Being Caught Texting Instructions to Prosecutors to Help Win Convictions (Poor Richard’s News 1/10/14). [http://poorrichardsnews.com/post/65069957264/texas-judge-resigns-after-being-caught-texting]

“There is a growing acceptance by New York, and by other states and the American

Bar Association, of the judiciary's use of social networking, and an acknowledgment that social media "friends" are not friends in the typical sense. While not yet uniformly welcomed, the bottom line would appear to be that as people become more and more comfortable with social media and the use of social media by judges, there is likely to be less and less concern about any appearance of impropriety.” There is a split among states about whether judges must recuse themselves if a lawyer whom the judge has “friended” on a social media site such as Facebook appears before them. Some states (Florida and Massachusetts) say judges must recuse themselves. Other states (Kentucky, Ohio, South Carolina and NY) say no ethical prohibition against such interactions and no mandatory recusal. (See, Shari Claire Lewis, When Judges ‘Friend’ Lawyers: Must Recusal Necessarily Follow?, [NYLJ, 6/18/13]).

As More Join Twitter Judge’s Must Remember to Be Cautious. Paul Grewal recently joined the small club of fellow jurists on Twitter, becoming his region’s first Federal judge to do so. While there are no ethical issues with joining Twitter itself, judges still must be cautious. The California Judges Association four years ago published guidelines for judges, suggesting that judges can join social media, but they still ought to be cautious. Judge Grewal himself admits he will read his “tweets twice before hitting the send button.” Still, some judges will simply choose to stay off social media altogether, which could be considered the safest ethical route. Judges on Twitter must exhibit extra-care, avoiding either interactions with lawyers who might have business before the court or tweeting

anything about cases or issues before them. Under the handle @iampaulgrewal Judge Grewal has joined the group of tweeting judges that includes Vicky Kolakowski, the nation’s first openly transgender judge, and Don Willett, possibly the most well-known judge on Twitter with 12,000 followers. Howard Mintz, OMG! Bay Area Federal Judge Joins Twitter, (MercuryNews.com 1/25/2015) [http://www.mercurynews.com/crime-

courts/ci_27390970/judges-twitter-bay-area-federal-magistrate-joins-twitterverse]


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Improper Use of Emails The New York City Department of Investigation (DOI) was requested to conduct an

investigation into Kings County District Attorney Charles J. Hynes, which specifically review allegations that Hynes used his official KCDA email account for campaign purposes. The DOI reviewed over 6000 emails and found that Hynes received at least 300 emails from Criminal Court Administrative Judge Barry Kamins. Most of the emails allegedly came from the judge’s official judicial account. Further investigation revealed that Judge Kamins received or was mentioned in over 800 of the emails sent by Hynes, and that many of these emails showed that Kamins engaged in political activity as a sitting judge by advising Hynes on campaign issues as well as active matters being prosecuted by the KCDA. The emails suggest the Kamins gave Hynes campaign advice as well as used the prestige of his judicial office as well as his personal connections to advance Hynes’ political interests. See, The New York City Department of Investigation’s Report of Findings Regarding Misconduct by Former Kings County District Attorney Charles J. Hynes, Justice Barry Kamins and Others. See also, Stephanie Clifford & Willaim K. Rashbaum, Ex-Brooklyn Prosecutor Charles J. Hynes Accused of Misuse of Funds (06/02/2014),

[http://www.nytimes.com/2014/06/03/nyregion/charles-hynes-brooklyn-district-attorney-inquiry.html?_r=0] As a result he was relieved of all administrative duties. Kamins’ resigned on December 1, 2014 and has returned to what will be a successful private practice with a new firm. See, John Caher, Kamins Relieved of Duties Following Probe Into Hynes Campaign (06/03/2014), [http://www.newyorklawjournal.com/id=1202657723737/Kamins-Relieved-of-Duties-Following-Probe-Into-Hynes-

Campaign?slreturn=20140611102629]. Justice Kamins has resigned effective.

Judge Resigns Position due to Email Controversy. Chief Judge Rader of the Court of Appeals for the Federal Circuit resigned his position as chief judge, and subsequently resigned from the bench. Rader chose to resign after news revealed that an e-mail proclaiming a particularly close friendship with an attorney was disseminated by that attorney. In a statement made that same day Rader said the email was “a breach of the ethical obligation not to lend the prestige of the judicial office to advance the private interests of others.” As previously discussed in Chapter 12, the attorney in question, Edward Reines, was punished by the same court for using the content of the message to solicit clients. The message contained laudatory remarks about the attorney, repeatedly referenced the very close relationship between the two, and even encouraged the attorney to disseminate that exact email. Ashby Jones, Email Controversy Leads to Reprimand of Weil Gotshal Patent Lawyer, (WSJ.com 11/5/14) [http://blogs.wsj.com/law/2014/11/05/email-

controversy-leads-to-reprimand-of-weil-gotshal-patent-lawyer/]; In re Edward R. Reines (771 F.3d 1326 [Ct Appeals Fed. Cir. Nov 5, 2014])


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Improper Texting

Judge Elizabeth E. Coker signed an agreement to resign after an investigation revealed that Coker texted instructions to an Assistant District Attorney who was prosecuting a case in Coker’s court. The texts included suggested questions to ask during trial, how to prep witnesses before they gave their testimony, and other tips that were meant to help the State obtain a guilty verdict. Coker was stripped of her judicial powers by the Conduct Commission and left her solely responsible for bearing the cost of any litigation that arises from her alleged misconduct. Tim Cushing, Texas Judge Forced to Resign After Being Caught Texting Instructions to Assistant DA During Trial (Above the Law.com 10/25/2013). [https://www.techdirt.com/blog/wireless/articles/20131023/14363624989/texas-judge-forced-

to-resign-after-being-caught-texting-instructions-to-assistant-da-during-trial.shtml]

Improper Message Board Use

Arkansas Judge Michael Maggio posted details regarding Charlize Theron’s 2012 adoption of a child to a Louisiana State University message board. He provided that his friend, another judge, handled the case and that Ms. Theron came to court in a disguise and with an entourage. He further joked that he “offered to be the baby daddy.” He also wrote: “did she get herself a black baby? Yep.” When found out, the Judge offered an apology, however he was subsequently removed from the bench for the ethical violation.

Meg Wagner, Arkansas judge fired for leaking details about Charlize Theron's 2012 adoption (NY Daily News, September 13, 2014) [http://www.nydailynews.com/entertainment/gossip/judge-fired-leaking-charlize-

theron-adoption-details-article-1.1938499]

Courts (Official Court Usages of Social Media) The New Media Committee of the Conference of Court Public Information Officers conducted a survey of the courts. The results of the 2012 CCPIO New Media and the Courts Survey reveal several major conclusions. [http://ccpio.org/wp-content/uploads/2012/08/CCOIO-2012-New-Media-

ReportFINAL.pdf]

The number of judges on social media profile sites continued to rise. In 2012, 46.1 percent of judges responding to the survey reported using the sites, with the majority (86.3 percent) on Facebook. The 2012 results confirm that judges who run for election, competitive or retention, are more likely to use social media profile sites. The 2012 number of judges who stand for competitive election and use the sites rose 7.5 percent, and the number of judges who stand for retention elections and use the sites rose 6.0 percent. Judges who never stand for election reported using the sites by 11.7 percent less than they did in 2011.


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The percentage of judges who strongly agree that courts as institutions can use the technology without compromising ethics has also doubled since 2010. The percentage of judges who strongly agree that new media are necessary for public outreach has doubled since 2010. Use of Video Technology within Social Media Programs? Defendant was charged with three counts of larceny in the third degree and criminal possession of stolen property in the third degree, one count of criminal possession of stolen property in the fourth degree and scheme to defraud in the second degree, and eight counts of official misconduct. The defendant moved to have evidence suppressed and the court conducted and Mapp/Huntley/Dunaway/Wade hearing. After a complaint that $5,000 dollars was stolen from a traveler as he passed through JFK Airport was lodged the Port Authority of New York and New Jersey, an investigation was conducted and resulted in Transportation Security Administration (TSA) employee Alexandra Schmid being identified by a coworker who alleged that she observed Schmid removing and taking an envelope from a jacket on the conveyor screening belt. Later in the case investigators needed to have the witness, who resided in a foreign country, identify the defendant from a photo array. Investigators emailed several photos of females, one of which was the detective, to a plaintiff located in India, who upon an initial review, could not readily identify the defendant. Investigators later sent the defendant’s photo in an email, and then another TSA agents’ photo in a subsequent email asking if the witness recognized either as the thief. The witness said that neither picture “rang a bell.” Investigators were able to later conduct another photo array identification with the witness, but this time in person. In this subsequent identification procedure the witness quickly identified the defendant as the thief. The defendant’s motion moved to suppress the evidence of the identification procedure by this witness, but the Judge allowed the in person identification to remain in evidence. In his decision, Justice Robert Charles Kohm suggested that in cases where the witness cannot conduct an identification procedure in person, investigators could utilize new technology such as Skype or Google Hangouts in order to avoid this sort of situation in the future. The use of such webcam services could be used to reach witnesses that reside in foreign countries while maintaining the integrity required in the identification process. See, People v Schmid, No. 1385/12, (Sup Ct, Queens Jan 9, 2013) (NYLJ 1202638482741]; see also John Caher, Judge Encourages Video Technology for Witness IDs (NYLJ 1/16/2014). But, proceed with Caution. In the well-known murder trial of George Zimmerman, the parties used Skype to question a witness. At the prosecution’s request, the court agreed for Zimmerman’s former professor to testify via Skype. The prosecution direct examined the witness with no issues but, before the defense had an opportunity to cross-examine, other Skype users repeatedly called the witness. After the judge instructed that the program be shut down, the defense finished its questioning by telephone. The lawyers failed to recognize that “Skype is more of a social media technology than a videoconferencing tool.” In addition to the Skype mishap which subsequently may have led jurors to question the prosecutor’s credibility, the prosecution unintentionally showed a police report, compromising Zimmerman’s private information. If the court agrees to question a witness via videoconferencing, the appropriate tools as well as personnel should be consulted. Claire Duffett, Social Sabotage, Law Technology News, (Oct. 2013).


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New York State The New York State Access to Justice Program launched a Facebook page for its volunteer program to provide information to potential volunteers, share information about trainings, and post photos and awards information. Launched in the spring of 2010, the NYS Access to Justice Program is one of only a hand full of court programs in the US to use Twitter specifically to deliver information to pro se litigants. In January of 2014 the New York Court System launched a twitter feed which can be accessed on twitter or received to a cell @nycourtsnotice for information regarding court closings, delayed openings, schedule changes and other court emergencies. The New York State Court of Appeals now has a Twitter account. @NYCourtsCOA, will post links to decisions, calendars, case summaries, bar notices, amicus submission requests and other information. @NYCourtsPressOffice also launched but has not yet tweeted out any information. The Unified Court System has started podcasting with the launch of its “Amici” podcast, available at http://nycourts.gov/admin/amici. The podcasts contain conversations with figures of important to the courts, criminal justice and legal system. Joel Stashenko, Legal Podscast Available on State Court Website, (NYLJ, 4/1/15) However, Judges and courts should not create court pages on social media sites that host third party advertisements because it may create an appearance that the court system itself is subject to outside influence or control. Judicial Ethics Opinion 14-05 (05/23/2014). [http://www.newyorklawjournal.com/id=1202656435447/Judicial-Ethics-Opinion-1405] Other Uses of Social Media The California Judicial Branch has taken to using its YouTube site as a platform for pro-active advocacy for public policy issues affecting the judicial branch, in particular illustrating the need for adequate funding in the face of the budget constraints brought on by the Great Recession. For example, the California Judicial Branch produced a news-style video covering an April 18 rally, where more than 500 protesters gathered outside San Francisco City Hall to raise awareness of the state's court funding crisis and to present a unified message to the governor and legislature by calling for the restoration of court funding in California. The Ohio Supreme Court in July launched a comprehensive, multichannel, multimedia program covering news about the Ohio judicial system for the judiciary, the legal community, and the general public. Billed as the “news bureau for the Ohio judicial branch,” Court News Ohio features expanded news about Ohio courts online (courtnewsohio.gov), in print (a monthly print publication Court News Ohio Review) and on TV (CNO-TV, which will air on the Ohio Channel). A service of the Supreme Court’s Office of Public Information, the program also includes a Facebook page and a Twitter feed. Videos are available for individual download or through a free podcast subscription on Apple iTunes.


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According to the former District Attorney of Brooklyn New York: “Social Media has become an increasingly important tool for people to use in order to communicate, as well as to share information and resources. It is important for people to know what services and initiatives are available to them. You get daily updates to learn of new developments by following my office...on Facebook, Twitter, YouTube, Instagram and Pinterest.” Charles J. Hynes, Why Is Social Media Important? Vol 59 No. 13 Brooklyn Daily Eagle 12 (Apr. 29, 2013).

Allison Jones, Guidelines Proposed in Canada to Open Courts to Social Media (Law.com 10/30/12) [http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202576716001&Guidelines_Proposed_in_Canada_to_Open_C

ourts_to_Social_Media].

Jeffrey Hermes, Judge: Blogging from the Courtroom OK, Twitter Not So Much, (Digital Media Law Project 3/2913) [http://www.dmlp.org/blog/2013/judge-blogging-from-courtroom-ok-twitter-not-so-much].


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Chapter 16: For Further Reading

If You Really Need More Information on These Topics, Then For Further Reading: Peter Vogel, How to Understand Social Media Evidence, (Law.com 01/02/13)

[http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202582974936]

Kevin O’keefe, Dear Lawyers: It’s Not Okay to Know Nothing about Social Media Anymore (12/29/12) [http://kevin.lexblog.com/2012/12/29/dear-lawyers-its-not-okay-to-know-nothing-about-social-media-

anymore/]

Barry Murphy, eDiscovery 2012: The Year In Review (Forbes.com) [http://www.forbes.com/sites/barrymurphy/2012/12/26/ediscovery-2012-the-year-in-review/]

Monique C.M. Leahy, J.D. Facebook, MySpace, LinkedIn, Twitter, and Other Social Media in Trials, 122 Am. Jur. Trials 421

Mark A. Berman, Social Media Discovery and ESI in Motion Practice, (NYLJ 1/8/13)

Marc A. Berman, Decisions Address Relevance, Scope, Email and Privacy Issues, (NYLJ 9/2/14)

Andrew Delaney & Darren Heitner, Made for Each Other: Social Media and Litigation, 85

NY STATE BAR ASSOC. J 10 (February 2013) Robyn Hagan Cain, Do Facebook and Class Action Lawsuits Mix? (Findlaw.com 2/25/13)

[http://blogs.findlaw.com/strategist/2013/02/do-facebook-and-class-action-lawsuits-

mix.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FLStrategist+%28Strategist%29&utm_content=G

oogle+Reader]

Brandon Vogel, E-Discovery: A Potential Weapon of Mass Discovery, 55 NYSBA State

Bar News 27 (March/April 2013) Barry Buchman & Michelle Price, Social Media in Litigation, (Jdsupra.com 4/18/13) [

http://www.jdsupra.com/legalnews/social-media-in-litigation-92624/] Albert Barsocchini, What We've Got Here is Failure to Communicate, (Law.com 4/23/13)

[http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202597207342&What_Weve_Got_Here_Is_Failure_to_Comm

unicate] Nic Christensen, Journalist Use of Social Media In Court an Issue, (mumbrella.com.au,

5/16/13) [http://mumbrella.com.au/journalist-use-of-social-media-in-court-an-issue-155942]

msciarri

Draft


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Lisa Kim, Busy at Work: California Legislature Addressing Data Privacy Concerns with Data Privacy Law, (jdsupra.com, 5/15/13), [http://www.jdsupra.com/legalnews/busy-at-work-california-

legislature-add-26074]

Barry Murphy,Social Media Discovery: We Are Woefully Unprepared!,

(Ediscoveryjournal.com, 5/22/13), [http://ediscoveryjournal.com/2013/05/social-media-discovery-we-are-woefully-

unprepared]

Social Media Law in 2013: Even Bigger! (The 2morrowknight, 12/24/12)

[http://www.2morrowknight.com/social-media-law-in-2013-even-bigger/] Victor Li, Conor Crowley Updates Latest E-Discovery Trends (Law.com, 7/17/13)

[http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202611354070&Conor_Crowley_Updates_Latest_EDiscovery

_Trends&slreturn=20130721092021]

Advancing e-technology has made cost effective innovations in the legal realm, namely ELIZA utilized within insurance companies like ING replacing human personnel, and e-discovery allowing for more thorough litigation, begging the question as to where technology will take the law. Cost effective e-discovery has yielded efficiency allowing lawyers to litigate Lewis poses perhaps jurors would be replaced by systematic machines where formulaic facts would be interpreted. See, Drew Lewis, Esq., eDiscovery Counsel Recommind: Beyond E-discovery: The Future of Legal Technology, Law Technology News, (December 2013).

ESI material is the most imperative because it results in discoverable material and

exchanged data that will be used at trial. Creating search terms to locate these materials is imperative to ensure an exchange is accurate and reliable. To aide with this the author explores, the legal standards for conducting an adequate search, challenges in creating effective keyword searches, and best practices in conducting reasonable keyword searches. With these tools lawyers ensure thorough legal review of ESI material with accurate results. See, Randi Weaver, Esq., Creating Effective Keyword Search Terms for Document Review, Law Technology News, (December 2013).

Crowell & Moring, Data Law Trends & Developments: E-Discovery, Privacy, Cybersecurity & Information Governance [http://www.crowell.com/files/Data-Law-Trends-Report-2014.pdf]

Hon. Shira Scheindlin, Big Data and Privacy: Finding the Balance, (NYLJ, 2/10/14)

Jeff Storey, Q&A: Mark Berman, (NYLJ, 11/15/13)

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© 2013-2015 Hon. Matthew A. Sciarrino, Jr.