Social Media & Litigation:Coloring Inside the Lines

November, 2011

What are the Most Well-Known Social Media Sites?

• Facebook• LinkedIn• Myspace• Twitter• YouTube• Flickr• Yammer• Blogs

“Friending” the Opposing Party

You are defending a driver in an automobile accident. The Plaintiff is represented. During the deposition of the Plaintiff, you learn that she has a number of photographs of the accident posted on her Facebook account. The pictures have not been produced in discovery and, based on the description by the Plaintiff, you believe that they will be very helpful to your case.

Can you send a "friend" request to the opposing party to view the pictures?

NO !!!!!!!!

Why?

• Rule 4.2 Communication With Person Represented By Counsel– In representing a client, a lawyer shall not communicate about the subject of

the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

• NY Rules of Professional Conduct defines “Computer-accessed communication” as including communications made by or on behalf of a lawyer or law firm through the use of a computer or electronic devices, e.g, web sites, blogs, search engines, email, banner ads, pop-ups, chat rooms, list servers, and IMs

• Friend requests are "communications among members." United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009).

But…. Public Information is Different

• A lawyer representing a client in pending litigation may access the public pages of another party's social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation. NYSBA Opinion # 843 (09/10/2010). See also Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. App. 2009).

• Viewing information that is accessible to the general public. Oregon State Bar Legal Ethics Comm'n, Op. 2005-164 (August 2005).

“Friending” Adverse Witnesses

You are representing the Plaintiff in a very contentious divorce matter. You find out that the Defendant has a “close friend” that will have some very helping evidence for your position, including pictures. The pictures are posted on the adverse witness’ social media site, but under private settings.

Can you send a friend request to an adverse witness?

Scenario

MAYBE

Model Rules

• Model Rule 4.1(a) forbids a lawyer from making false statements of material fact to a third person. Accordingly, failure to identify the true purpose of a contact with a third party constitutes a "false statement" could violate this Rule.

• Model Rule 4.4(a) prohibits attorneys from gaining evidence in a way that violates the rights of another.

• Model Rule 8.4(c) bans conduct by a lawyer that involves dishonesty, fraud, deceit, or misrepresentation.

• Model Rule 1.2 prohibits attorneys from advising their clients to engage in fraudulent behavior.

• Model Rule 3.4 specifies that attorneys shall not perpetuate fraud.

• Model Rule 8.4 bars attorneys from hiring agents to engage in unethical practices.

Lawyers Cannot Obtain Content Via Deception

Unethical to “Friend” a party or witness under false pretenses in order to gain access to Facebook page, even through a 3rd party (pretexting)

Cannot “friend” a represented party Philadelphia Bar–cannot “friend” without

disclosing purpose and association with lawyer NY State Bar–can view public information, even of

a party to the litigation NY City Bar–can “friend” using true name but

without disclosure –“truthful friending” – encourages informal discovery

San Diego County Bar–the duty of an attorney under the State Bar Act not to deceive extends beyond the courtroom

• Philadelphia Opinion 2009-2• NY State Opinion 843 (2010)• NY City Opinion 2010-2• SDCBA Legal Ethics Opinion 2011-2

Issuing Subpoenas to Facebook

An artist brought an action against a licensee for breach of a license agreement to use the artist’s artwork in garments. You represent the licensee, and you served a third-party subpoena to Facebook for the artist’s private messages and wall postings. The artist’s privacy settings for his Facebook page only allows his “Friends” to have access to his page.

If the artist moves to quash the subpoena, will he be successful?

YES

Why?

• The artist’s Facebook private messages are not subject to a subpoena duces tecum under the Stored Communications Act, 18 U.S.C. § 2703(e), because they are not readily accessible to the general public and therefore are inherently private. Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. May 26, 2010).

• SCA was enacted in 1986 as part of the larger Electronic Communications Privacy Act (ECPA).• The SCA deals with the voluntary and compelled disclosure of “stored wire and electronic

communications and transactional records” retained by third-party internet service providers (ISPs). It also prohibits ISPs from divulging the contents of electronic communications carried, stored, or maintained by the service.

• Largent v. Reed, No. 2009-1823, Court of Common Pleas of the Thirty-Ninth Judicial District of Pennsylvania – SCA does not apply to individual plaintiffs, but to enumerated entities, so a party can be required to provide access to his or her social media accounts

In civil matters, a court cannot issue a subpoena to social media sites for the release of communications relating to a third-party.So how do we get the information legally and ethically?

No “Social Media” Privilege Exists• Courts can and do issue discovery orders compelling a party of a lawsuit to

grant an opposing party access to his or her Facebook page. McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (Northumberland Co., May 19, 2011) Troubling privacy rights implications in criminal cases: USA v. Lakha, N.D. Ga., 1:10cr451 –

Sexual assault victim required to share Facebook materials with defense counsel and judge for review

Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650, 2010 N.Y. Misc. LEXIS 4538, 2010 NY Slip Op 20388 (2010)

Largent v. Reed, No. 2009-1823, Court of Common Pleas of the Thirty-Ninth Judicial District of Pennsylvania, Franklin County Branch

Offenback v. LM Bowman, Inc., 2011 U.S. Dist. LEXIS 66432, No. 1:10-CV-1789 (M.D. Pa. June 22, 2011)

EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010) McCann v. Harleysville Ins. Co., 78 A.D.3d 1524 (N.Y.S.2d 2010)

No Fishing Expeditions!• The mere existence of a social media profile does not entitle a party to gain

access to all materials on the site. • Must provide threshold showing that publicly accessible portions of social

networking site contain information suggesting that further relevant postings are likely to be found by access to the non-public portions)

Piccolo v. Paterson, No. 2009-04979 (Bucks Co., May 5, 2011) Mackelprang v. Fid. Nat'l Title Agency of Nev., Inc., 2007 U.S. Dist. LEXIS

2379, 99 Fair Empl. Prac. Cas. (BNA) 997 (D. Nev. Jan. 9, 2007) Kennedy v. Norfolk S. Corp., No. 100201437 (Pa. C.P. Phila. Jan. 15, 2011) EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010) Tompkins v. Detroit Metro. Airport, 2012 U.S. Dist. LEXIS 5749 ( E.D. Mich.

Jan. 18, 2012) Davenport v. State Farm Mut. Auto. Ins. Co., 2012 U.S. Dist. LEXIS 20944

(M.D. Fla. Feb. 21, 2012)

• Rules of Civil Procedure generally provide for liberal discovery• Social Networking content is not shielded from discovery simply because it’s

“locked” or “private”• No fishing expeditions• Postings on social networking sites that are inconsistent with statements in

discovery often result in the private portions of those sites being ruled discoverable• The proper method of obtaining discovery of social media is to serve properly

limited requests for relevant information. The producing party should err in favor of production if there is any doubt over relevance. A refusal to produce could be grounds for sanctions.

• Court may decline to review materials in camera if requested: 1) strain on court resources, 2) unfair to require Court to guess at what may be germane to case.

Key Takeaways from Opinions on Discovery of Social Media Site Content

• How do you know (or how can you prove) it was there if party/witness does not consent to production?

• Beware spoliation sanctions, however: Lester v. Allied Concrete Company , No. CL08-150, Cir. Ct. Charlottesville, Va. = $522k against attorney, $180k against client

• Although Facebook “caches” users’ pages, that information won’t be available directly because of the SCA if the user deletes the page in contemplation of litigation or after discovery requests. No way under the current law to access deleted information UNLESS specific order of court is obtained directing party to consent to site’s production of deleted pages. See Romano v. Steelcase.

• If party does consent to production from Facebook, costs are significant for production: Facebook charges “a mandatory, non-refundable processing fee” of $500 per production request, an additional $100 fee for notarized declarations and an extra $200 fee for expedited responses.

• And the biggest issue of all…. Authentication

Practical Implications

Some courts are providing instruction on how to authenticate…

Genworth Financial Wealth Management Inc. vs. McMullan, 2010 U.S. Dist. LEXIS 53145 (D. Conn. June 1, 2010) (District court outlined in detail the procedures that the computer forensic specialist should follow)

United States v. Williams, 2010 U.S. App. LEXIS 1347 (4th Cir Jan 21, 2010) Schreiber v Schreiber, 2010 NY Slip Op 20271 (N.Y. Sup. Ct. 2010) (Court provided

detailed instructions on the protocol for cloned hard drives.) Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007) Commonwealth v. Purdy, 459 Mass. 442 (Mass. 2011) (emails on shared computer

regarding prostitution ring)

BUT, others object to the potential for fraud

Griffin v. State, 2010 Md App. LEXIS 87 (Md. Ct. Spec. App. May 27, 2010) (police officer not permitted to authenticate printout of MySpace pages in murder trial)

Look for increasing awareness of potential fraud and challenges in authentication

How do we know who posted that update?

Waiver of Attorney-Client Privilege or Work Product Doctrine Protection

The presence of a third-party during attorney-client communications will generally negate the privilege

McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270

Lenz v. Universal Music Corp., 2010 U.S. Dist. LEXIS 119271 (N.D. Cal. Oct. 22, 2010)

Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003)

Stern v. O’Quinn, 253 F.R.D. 663 (S.D. Fla. 2008)

Researching Jurors

Scenario You are preparing for trial. The week before the trial

begins you receive the list of potential jurors. Due to the likelihood of potential bias against your client, you want to research the potential jurors by Googling their names and/or “Facebooking" them.

Can you Google the jurors names and/ or Facebook them?

YES

Why?

• You may even have a duty to do so as long as no contact is made with the juror. Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010).

– Litigants should not be allowed to wait until a verdict has been rendered to perform a Case.net search for jurors' prior litigation history when, in many instances, the search also could have been done in the final stages of jury selection or after the jury was selected but prior to the jury being empanelled. Johnson v. McCullough, 306 S.W.3d at 558-59.

• American College of Trial Lawyers, Annotated Code of Trial Conduct Rule 19(b) (2005).

But Be Careful!

• Model Rule 3.5: Impartiality And Decorum Of The Tribunal• A lawyer shall not:

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

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

– (d) engage in conduct intended to disrupt a tribunal.

• The Rule still applies whether you hide your identity or not.

Monitoring the Jurors Communications During Trial

You are in trial on a major case. During a break, you see one of the jurors typing on her Blackberry in the bathroom. You know that the juror is an active social media user because of voir dire, and you suspect that she is “tweeting” during trial.Can you monitor the juror’s communications during trial?

Scenario

YES

Juror Social Media Use Consequences

• Juror No. 5 blogged throughout the public corruption trial of a former PA state senator. Philadelphia Daily News, Mar. 16, 2009. The defense moved for a mistrial but the court denied the motion and Sen. Fumo eventually was found guilty.

• Car accident case in Tarrant County, Texas, wherein juror attempted to “friend” the defendant. Juror was removed from jury and was held in contempt. Trial continued without that juror.

• Mistrial results in Florida when 9 of 12 jurors admitted to doing research on the case during the trial.

• State v. Montas, Ind. No. S-149-11: NJ juror held in contempt for internet research leading to mistrial

• Beginning in 2012, California jurors who tweet during trial or deliberations can be sentenced to jail time.

jurorno5 Stay tuned for a big announcement on Monday everyone! #verdictabout 7 hours ago via web

ScenarioYou and your friend went to the same law school and the two of you passed the bar at the same time. Your friend just got appointed as a judge. You are a litigator, and you are frequently in court. You both have Facebook pages. Can you and the judge be “friends” on Facebook?

“Friending” the Judiciary

MAYBE

It Depends on Where You Practice

YESKentucky, New York, and Ohio A judge may be a “friend” on a

social networking site with a lawyer who appears as counsel in a case before the judge.

Judges’ Membership on Internet-Based Social Networking Sites, Formal Judicial Ethics Opinion JE-119 (Ky. Jan. 20, 2010)

New York Ethics Opinion 08-176 (NY Jan. 29, 2009)

Board of Commissioners on Grievances and Discipline Opinion 2010-7 (Ohio Dec. 3, 2010)

Advisory Comm. on Standards of Jud. Conduct, No. 17-2009 (S.C. Jud. Dept. Oct. 2009

NOFlorida Appearance of lawyers who may

appear before the judge as “friends” on a judge’s social networking page conveys the impression that these lawyers “friends” are in a special position to influence the judge

Judicial Ethics Advisory Committee Opinion No. 2009-20 (Fla. Nov. 17, 2009)

North Carolina Subjected a judge to disciplinary

proceedings for posting comments on an attorney's Facebook "wall" during and regarding an active lawsuit.

In re Terry, No. 09-234 (N.C. Jud. Standards Comm'n Apr. 1, 2009).

Proof of Service, Facebook-Style

You have just taken on a new case against a very elusive internet mogul. He has no known residential address, and because of the nature of his business, is able to avoid having a business address. In other words, personal service is impossible and service by traditional means of publication is unlikely.

Can you serve the defendant through Facebook or other social media sites?

Scenario

MAYBE

Depends on Where You Are….

• United States– Mpafe v. Mpafe, Hennepin County, MN No. 27-FA-11-3453: Authorized service

of divorce proceedings on defendant, who was believed to have left the country, by email, “Facebook, Myspace or any other social networking site.” Order stated that while the court allowed service by publication in a legal newspaper, it was unlikely the respondent would see it. “The traditional way to get service by publication is antiquated and is prohibitively expensive,” Judge Kevin Burke wrote. “Service is critical, and technology provides a cheaper and hopefully more effective way of finding respondent.”

– Rio Props. v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002): Email service upon foreign Internet gambling business was appropriate alternative service

– Concerns are as follows:• Identification• Infrequent users

Australia - MKM Capital Property Limited v Corbo and Poyser, No. SC 608 of 2008 Canada - Knott v. Sutherland (Feb. 5, 2009) Edmonton 0803 002267 (Alta.Q.B.M.) New Zealand - Axe Market Gardens v Craig Axe CIV: 2008-485-2676 United Kingdom - Blaney v Persons Unknown (October 2009) Allowed: Generally must demonstrate both an inability to serve the defendant

through a more traditional medium, and that service through social media offers a reasonable chance of success.

Other Countries

Other Litigation-Related Social Media Tips

Service of Subpoenas:

• Find a picture of your witness on Facebook and send it to your process server.

• Find out who their employer is on Facebook and serve them at work.

• Monitor their wall to see if they announce their current location - Foursquare

Gathering Data

• Adverse Party: Can lead you to other fact witnesses

• Opposing Counsel: Locate information on experience, education, recommendations, links to blogs and other social media accounts, associations, professional distinctions and awards

• Opposing Experts: Discover possible links between counsel and expert; can be used for cross-examination

Additional Resources

April 10, 2023Law Firm Marketing Today35

• Letter to Client Regarding Use of Social Media Sites: http://www.karenkoehlerblog.com/Social%20Networking%20Site%20Letter.pdf

• COMMENT: Privacy's Role in the Discovery of Social Networking Site Information, 64 SMU L. Rev. 1433 (2011)• ARTICLE: DON'T BE A TWIT: AVOIDING THE ETHICAL PITFALLS FACING LAWYERS UTILIZING SOCIAL MEDIA IN THRE

E IMPORTANT ARENAS - DISCOVERY, COMMUNICATIONS WITH JUDGES AND JURORS, AND MARKETING, 20 Temp. Pol. & Civ. Rts. L. Rev. 297 (2011)

• Alexander "Sandy" Y. Thomas, Maureen C. Cain, Emma Lenthall, and Louise Berg, Social Media in Action in Litigation, Evidence & Privilege, Legal Bytes - http://www.legalbytes.com/tags/waiver-of-the-workproduct-doct/

• Network Interference: A Legal Guide to the Commercial Risks and Rewards of the Social Media Phenomenon (2nd Edition) Reed Smith, http://www.reedsmith.com/publications/white_papers.cfm?cit_id=26419&widCall1=customWidgets.content_view_1&usecache=false

• Our Pleasure to Serve You: More Lawyers Look to Social Networking Sites to Notify Defendants - Magazine - ABA Journal, http://www.abajournal.com/magazine/article/our_pleasure_to_serve_lawyers_social_networking_sites_notify_defendants/

• Nadine R. Weiskopf, Tweets and Status Updates Meet the Courtroom: How Social Media Continues to be a Challenge for E-Discovery in 2011, http://www.lexisnexis.com/eMarketing_WCS_graphics/145833/Social-Media-and-eDiscovery-Weiskopf.pdf

• Evan B. North, Comment, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1279, 1308 (2010) (noting social networking websites’ effect on discovery).

• Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislature’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1212-13 (2004).

Credits

April 10, 2023Law Firm Marketing Today36

Using Social Networking Sites as Informal Discovery Tools

American Bar Association Young Lawyers Division, February 12, 2011

Presenters: Min Cho, Holland & KnightVictoria Mitchell, Holland & KnightLisa McManus, LexisNexisStacie Winkler, Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C.

This program is based in part on the following CLE: