Upload
others
View
0
Download
0
Embed Size (px)
Citation preview
CLICK ON EACH FILE IN THE LEFT HAND COLUMN TO SEE INDIVIDUAL PRESENTATIONS.
If no column is present: click Bookmarks or Pages on the left side of the window.
If no icons are present: Click View, select Navigational Panels, and chose either Bookmarks or Pages.
If you need assistance or to register for the audio portion, please call Strafford customer service at 800-926-7926 ext. 10
Social Networking Websites: The Emerging Litigation Tool
Strategies for Using Facebook, Google, and other Online Sources in Litigation Practice
presents
Today's panel features:Carole Levitt, President, Internet For Lawyers, Rio Rancho, N.M.
Daniel L. Brown, Partner, Sheppard Mullin, New YorkSteven C. Bennett, Partner, Jones Day, New York
Wednesday, November 11, 2009
The conference begins at:1 pm Eastern12 pm Central
11 am Mountain10 am Pacific
Please refer to the dial-in/log-in instructions emailed to registrants to access the audio portion of the conference.
A Live 90-Minute Teleconference/Webinar with Interactive Q&A
For CLE purposes, please let us know how many people are listening at your location by
• closing the notification box, • clicking the chat button in the upper
right corner, • and typing in the chat box your
company name and the number of attendees.
• Then click send.
Social Networking Websites: The Emerging Litigation Tool
Trends in use of social networking in litigation
© Carole Levitt, Esq., Internet For Lawyers, Inc. [email protected] / 310/559-2247
SEMINAR IS BASED ON CYBERSLEUTH BOOK, ABA BOOK
CAROLE LEVITT: AUTHOR/SEMINAR SPEAKERCAROLE LEVITT: AUTHOR/SEMINAR SPEAKER
“SOCIAL NETWORKING SITES AREN’T JUST FOR SOCIAL NETWORKING.” Geoffrey Vance, Partner McDermott Will & Geoffrey Vance, Partner McDermott Will &
Emery Emery ---- “I make it a practice to use as many sources as I can “I make it a practice to use as many sources as I can come up with to find information about the other side. We used come up with to find information about the other side. We used to run LexisNexis; we still do that. We always look at cases, anto run LexisNexis; we still do that. We always look at cases, and d
now we use the Internet now we use the Internet —— Google, and social networking Google, and social networking sites.”sites.”-- Vance uses these soc network sites to gather facts Vance uses these soc network sites to gather facts
about the opposing sideabout the opposing side-- e.g., a plaintiff claimed Vance’s client e.g., a plaintiff claimed Vance’s client drove him out of business. opposing counsel painted plaintiff drove him out of business. opposing counsel painted plaintiff as poor, loving family man. Vance found on MySpace that the as poor, loving family man. Vance found on MySpace that the
plaintiff collects antique Jaguar cars/president of a Jaguar cluplaintiff collects antique Jaguar cars/president of a Jaguar club. b. Vance saw compromising photos showing plaintiff is not the Vance saw compromising photos showing plaintiff is not the
family man he claimed to be. The plaintiff also talked about thefamily man he claimed to be. The plaintiff also talked about thecase and the judge on the site.case and the judge on the site.
“SOCIAL NETWORKING SITES
AREN’T JUST FOR SOCIAL
NETWORKING.”
STATISTICS & TRENDS:STATISTICS & TRENDS:LexisNexis' Networks for
Counsel Survey of 1,474 lawyers (2009)
Over 70 % have a social networking profile
Up nearly 25 % in 1 year 30 percent growth aged 46+
(www.leadernetworks.com)
Internet For Lawyers’ survey of 32 law firms
(October 2009)
62% have a social networking profile
46% (of the 62%) look at profiles of others & of those 46% 42% review opposing
counsels‘ 12% review judge's 58% review potential client's 38% review current client's 17% review former client's 38% review potential hire's 4% review potential juror’s
STATISTICS & TRENDSSTATISTICS & TRENDS October 2009, 46% of
American adults who are online are ALSO using social networking sites (the Pew Institute; http://pewresearch.org/pubs/1385/who-uses-twitter-tweets).
Facebook: 300 million members (as of October 2009) median age of users: 33 &
fastest growth 35 years+
MySpace: 260 million members median age of users: 26
LinkedIn: 30 million members (as of December 10, 2008) average age of users: 39-41
EVEN PAY SITES LIKE INTELIUS ARE EVEN PAY SITES LIKE INTELIUS ARE OFFERING “SOCIAL NET SEARCHES”OFFERING “SOCIAL NET SEARCHES”----
PROMISES NAME, ADDRESS, PHONE, EMAIL, SCREEN NAME, PROFILE URLS.PROMISES NAME, ADDRESS, PHONE, EMAIL, SCREEN NAME, PROFILE URLS. on on 9/30/09 Intelius found one result: my linkedin profile, but I fo9/30/09 Intelius found one result: my linkedin profile, but I found that freeund that free--by just by just
googlinggoogling. .
INTELIUS SOCIAL NET SEARCHINTELIUS SOCIAL NET SEARCH
A jury found appellant Clark guilty of murdering a two-year-old left in his care. ON APPEAL: should the trial court have permitted the State to offer into evidence Clark’s entry from the social networking
website MySpace? YES, INDIANA SUP CT HELD: ? YES, INDIANA SUP CT HELD: trial court properly admitted evidence of Clark’s MySpace page B/C HE INTRODUCTED HIS OWN CHARACTER INTO EV & Clark’s posting contained only statements about himself and in reference to himself. The State is right:HIS SN
PROFILE= solely evidence of his own statements, not of prior criminal acts. It was Clark’s words and not his deeds that were at issue.
EVIDENCE FROM MURDER DEFENDANT’S SOCIAL NETWORKING PROFILE TO SHOW CHARACTER
http://www.in.gov/judiciary/opinions/pdf/10150901rts.pdf
EVIDENCE FROM MURDER DEFENDANT’S SOCIAL NETWORKING PROFILE TO SHOW CHARACTER
http://www.in.gov/judiciary/opinions/pdf/10150901rts.pdf
Justice Brown said, “Leduc can't hide behind self-set privacy controls on a website that's all about telling others about one's life.”
Leduc v. Roman, 06-CV-3054666PD3,
JUDGE COMPELS PRODUCTION OF PRIVATE SOCIAL NETWORKING PROFILE IN CANADIAN SUPERIOR COURT
PERSONAL INJURY CASE http://tinyurl.com/yfokbbz
JUDGE COMPELS PRODUCTION OF PRIVATE SOCIAL NETWORKING PROFILE IN CANADIAN SUPERIOR COURT
PERSONAL INJURY CASE http://tinyurl.com/yfokbbz
JUDGE COMPELS TEENS TO DIVULGE JUDGE COMPELS TEENS TO DIVULGE PRIVATE SOCIAL NETWORKING PROFILES PRIVATE SOCIAL NETWORKING PROFILES
IN NEW JERSEY CIVIL CASESIN NEW JERSEY CIVIL CASES
Beye v. Horizon, 06-Civ.-5337 and Foley v. Horizon, 06-Civ.-6219
U.S. Magistrate ordered plaintiffs to turn over private MySpace and Facebook profiles.
Plaintiffs claimed they didn’t have any.
How can you verify that?
AFTER VIEWING “PUBLICLY AVAILABLE” INFORMATION – PROVIDED BY HUGH ON A
GOVERNMENT ELECTION SITE, REPORTER DECIDED TO RESEARCH HUGH’S FACEBOOK PROFILE…
HAD A RESPECTABLE CHANCE OF ELECTION AS STATE REPRESENTATIVE IN HAD A RESPECTABLE CHANCE OF ELECTION AS STATE REPRESENTATIVE IN NOV. 2006…NOV. 2006…
AFTER VIEWING “PUBLICLY AVAILABLE” INFORMATION – PROVIDED BY HUGH ON A GOVERNMENT ELECTION SITE, REPORTER DECIDED
TO RESEARCH HUGH’S FACEBOOK PROFILE…
AFTER VIEWING “PUBLICLY AVAILABLE” INFORMATION – PROVIDED BY HUGH ON A GOVERNMENT ELECTION SITE, REPORTER DECIDED
TO RESEARCH HUGH’S FACEBOOK PROFILE…
HOW TO USE FACEBOOK HOW TO USE FACEBOOK http://www.facebook.com
FACEBOOK (http://www.facebook.com)
FACEBOOK (http://www.facebook.com)
facebookfacebook.com .com –– hughhugh’’ss pixpixKMDSHD,MCKMC
KMK
SOCIAL NETWORKING SITES “PUBLICLY AVAILABLE” INFORMATION – PHOTOS VOLUNTARILY
PROVIDED BY HUGH FOSKETT IN HIS FACEBOOK PROFILE
SOCIAL NETWORKING SITES “PUBLICLY AVAILABLE” INFORMATION – PHOTOS VOLUNTARILY
PROVIDED BY HUGH FOSKETT IN HIS FACEBOOK PROFILE
FACEBOOK.COM ASKS YOU TO SIGN UP. AVOID SIGNING UP, STILL FACEBOOK.COM ASKS YOU TO SIGN UP. AVOID SIGNING UP, STILL SEARCH.SEARCH.BUT TO SEE FULL PROFILES OF OTHERS MUST Create a BUT TO SEE FULL PROFILES OF OTHERS MUST Create a
Profile (Automatically Assigned to Network BASED ON EMAIL ADDRESProfile (Automatically Assigned to Network BASED ON EMAIL ADDRESS) S) AND BE IN THEIR Specific Network (unless they opened their profiAND BE IN THEIR Specific Network (unless they opened their profile to le to everyone) Or CAN everyone) Or CAN ““PokePoke”” To Become A To Become A ““FriendFriend”” TO SEE SOMEONETO SEE SOMEONE’’S S
PROFILE.PROFILE.
SEARCH BY NAME
FACEBOOK-TO AVOID SIGNING UP, USE THIS URL: http://www.facebook.com/srch.php
FACEBOOK-TO AVOID SIGNING UP, USE THIS URL: http://www.facebook.com/srch.php
FACEBOOK- We are not logged into Facebook -- ONE SEARCH RESULT FOR HUGH FOSKETT——
DOESN’T SHOW US WHAT NETWORK HE IS DOESN’T SHOW US WHAT NETWORK HE IS IN. CIN. CAN VIEW NAMES/PHOTOS OF HUGH’S FRIENDS SO YOU MIGHT BE ABLE TO SEE
CONNECTIONS BETWEEN PEOPLE. CAN CONTACT HUGH’S FRIENDS IN THE REAL WORLD.
FACEBOOK (We are not logged into Facebook)FACEBOOK (We are not logged into Facebook)
NAMES & PHOTOS OF HUGH’S
FRIENDS ARE DISPLAYED
IF logged into Facebook CAN SEARCH BY MORE CRITERIA: NAME, EMAIL, SCHOOL, COMPANY, ETC. AND
FACEBOOK (We ARE logged into Facebook)FACEBOOK (We ARE logged into Facebook)
SEARCH BY NAME OR
SEARCH BY SCHOOL NAME (AND
PERSON’S NAME)
SEARCH BY COMPANY (AND
PERSON’S NAME)
NOW SHOWS NAME OF HUGH’S NETWORK AND WE CAN SEE ALL HIS 625 FRIENDS.
FACEBOOK (We ARE logged into Facebook)FACEBOOK (We ARE logged into Facebook)
SHOWS NAME OF HUGH’S
NETWORK: WASHINGTON ‘08
YOU MUST BE FRIENDS TO SEE HUGH’S FULL PROFILE
SEE ALL 625 FRIENDS
Facebook. PHOTO-M ADDED. %WHAT ARE YOU DOING
RIGHT NOW? I NEVER TELL. (LAWYER SERVED SOMEONE
AFTER LEARNING WHERE PERSON WORKED/WHAT TIME
SHE GOT THERE).. %I GOT TAGGED.
CYBERSLEUTHSFACEBOOK PROFILEFACEBOOK PROFILE
I GOT “TAGGED”
WHAT ARE YOU DOING RIGHT NOW?
Facebook: STATUS UPDATES: IF MY FRIENDS POST THEIR STATUS, IT GETS
POSTED TO MY PROFILE. RANDI IS CRAZED W/ WORK; SARAH TOOK ½ DAY
OFF… NEWS FEEDNEWS FEED –– ACTIVITIES OR INFO ACTIVITIES OR INFO POSTED IN YOUR FRIENDS’ PROFILES.POSTED IN YOUR FRIENDS’ PROFILES.
CYBERSLEUTHSFacebook: REAL TIME TRACKING OF PEOPLEFacebook: REAL TIME TRACKING OF PEOPLE
STATUS UPDATES (FROM FACEBOOK
FRIENDS): WHAT ARE YOU DOING RIGHT
NOW?
Facebook: SET PRIVACY-1.BASIC INFO-WHO CAN SEE YOURPHOTOS, PERSONAL INFO, TAGGED PHOTOS, VIDEOS, FRIENDS, WALL POSTS, EDUCATION, WORK) & 2. CONTACT INFO (E-MAIL, PH #, WEBSITE): 1. OPEN TO TO EVERYONE, 2. RESTRICT TO MY NETWORK &EVERYONE, 2. RESTRICT TO MY NETWORK & MY FRIENDS, OR 3. FRIENDS OF FRIENDS, OR
4. ONLY FRIENDS, 5. CUSTOMIZE –TO BLOCK A NAME OR EMAIL ADDRESS
CYBERSLEUTHS(108) Facebook: SET PRIVACY(108) Facebook: SET PRIVACY
SET PRIVACY. CLICK ON “BASIC” OR “CONTACT INFO”
MYSPACE.COM: Launched in January 2004Launched in January 2004. . JULY 09: 260 Million profiles & 130 million active users monthlyJULY 09: 260 Million profiles & 130 million active users monthly. 12/08 Pew . 12/08 Pew ReaserchReaserch: 50% of adult Soc Net users have : 50% of adult Soc Net users have
myspace profiles & median age 27. myspace profiles & median age 27. FROM DROPFROM DROP--DOWN MENU, DOWN MENU, CHOOSE “MYSPACE” TAB AND SEARCH ELIZABETH SARLEY. THIS ADDS “AND” BETWEEN WORDS. CAN ALSO USE QUOTATION
MARKS TO SEARCH A PHRASE, OR USE “OR” (“NOT” AND “MINUS” DIDN’T SEEM TO WORK).
MYSPACE.COM SEARCH ELIZABETH SARLEY MYSPACE.COM SEARCH ELIZABETH SARLEY
SEARCH: ELIZABETH SARLEY
CHOOSE “MYSPACE”
SEARCH
YOU WON’T GET A RESULT FOR ELIZABETH SARLEY B/C SHE DIDN’T
USE HER NAME ON PROFILE
NO MYSPACE.COM SEARCH RESULTS FOR ELIZABETH SARLEY
NO MYSPACE.COM SEARCH RESULTS FOR ELIZABETH SARLEY
MYSPACE.COM: CHOOSE “PEOPLE” TAB AND SEARCH
ELIZABETH SARLEY
MYSPACE.COM: SEARCH “PEOPLE”MYSPACE.COM: SEARCH “PEOPLE”
SEARCH: ELIZABETH SARLEY
CHOOSE “PEOPLE”SEARCH
SEARCH RESULTS FOR ELIZABETH SARLEY—EVEN THO HER LAST NAME IS NOT ON HER PROFILE, B/C SHE USED FULL NAME TO REGISTER WE GET A
SEARCH RESULT
MYSPACE.COM: SEARCH RESULTSMYSPACE.COM: SEARCH RESULTS
2 SEARCH RESULTS FOR: ELIZABETH
SARLEY
ELIZABETH’S LAST NAME (SARLEY) IS NOT ON THIS PAGE
&PROFILE IS SET TO PRIVATE.
MYSPACE.COM: SEARCH RESULTSMYSPACE.COM: SEARCH RESULTS
ELIZABETH’S LAST NAME (SARLEY) IS NOT ON THIS PAGE
MYSPACE.COM— EVEN IF NOT LOGGED IN, CAN ALSO SEARCH BY ALL NAME FIELDS (E.G. MAIDEN NAME, CURR NAME, OR DISPLAY NAME),
NAME, DISPLAY NAME, OR EMAIL ADDRESS.
MYSPACE.COM — FIND FRIENDS/SEARCH BY…MYSPACE.COM — FIND FRIENDS/SEARCH BY…
ALL NAME FIELDS, NAME, DISPLAY NAME,
OR EMAIL
MYSPACE.COM— SET PRIVACY: CAN BLOCK SPECIFIC USERS. you can even create friend categories to show parts of your
profile to specific friends. CHOICES: CHOICES: Anyone can view my comments page, ONLY FRIENDS…Choose who can view , ONLY FRIENDS…Choose who can view your friends pageyour friends page. Mutual friends are . Mutual friends are
always public. Choose who can view always public. Choose who can view your photos pageyour photos page… …
MYSPACE.COM: SET PRIVACYMYSPACE.COM: SET PRIVACY
LINKEDIN SCROLL DOWN TO LOCATE “LINKEDIN SCROLL DOWN TO LOCATE “SEARCH BY SOMEONE BY NAME” SEARCH BOXES. CAN SEARCH BY NAMESEARCH BY NAME--EVEN IF NOT SIGNED IN. EVEN IF NOT SIGNED IN. LinkedIn jumped from 3.6 LinkedIn jumped from 3.6 million unique monthly visitors in 3/08 to 7.7 million in 03/09,million unique monthly visitors in 3/08 to 7.7 million in 03/09,
according to according to ComScoreComScore. .
LINKEDIN LINKEDIN
“SEARCH FOR SOMEONE BY NAME”
SEARCH RESULTSSEARCH RESULTS--CAN ONLY CAN ONLY CLICK “VIEW FULL PROFILE” IF CLICK “VIEW FULL PROFILE” IF
YOU ARE LOGGED IN.YOU ARE LOGGED IN.
LINKEDIN: PARTIAL PROFILE LINKEDIN: PARTIAL PROFILE
MUST BE LOGGED IN TO VIEW FULL PROFILE
Select how much of your profile you want available to the public: none, full, basics (name, industry, location, number of recs). CAN EVEN SAY
“NONE” SO ONLY YOUR CONNECTIONS CAN VIEW.Select how much of your profile you want available to
the public.
LINKEDIN LINKEDIN
Once you’re connected to another Linkedin user you have access to their full profile and get updates about them AND THEY’LL HAVE ACCESS TO YOU—even if you choose “none” in the privacy settings-this means non-connections won’t find you . IF YOU SAY YOU DON’T KNOW PERSON WHO WANTS TO LINK TO
YOU-THEY’LL HAVE TO ENTER AN EMAIL ADDRESS W/ FUTURE INVITATION. (CAN VIEW FRIENDS OF FRIENDS IF THEY SHOW UP IN A SEARCH WHEN LOGGED IN)
LINKEDIN: Once you’re connected to a Linkedin user you have access to their full profile.
LINKEDIN: Once you’re connected to a Linkedin user you have access to their full profile.
CLICK: CONTACTS/NETWORK STATISTICS: OUT OF 40
MILL TOTAL, I HAVE 57 CONNECTIONS. THOSE 57 LINK ME TO 12,500+ PROFILES, WHICH I CAN VIEW. I AM 3
DEGREES AWAY FROM 1.2 MILLION P (WHOSE PROFILES I CAN’T SEE UNLESS 1 OF THE 1.2 MILL COMES UP IN A SEARCH, THEN I CAN SEE FULL PROFILES (AS MUCH
AS THEY’VE LEFT OPEN).
CLICKED: CONTACTS/NETWORK STATISTICS
LINKEDIN—CAROLE’S NETWORK STATISTICSLINKEDIN—CAROLE’S NETWORK STATISTICS
Carole’s Connections. NOTE-OVER 500 JMLS ALUM. Click dana berman. ADVANCED OPTIONS-CAN FILTER YOUR CONNECTIONS BY LOCATION OR INDUSTRY.
LINKEDIN--Carole’s Connections LINKEDIN--Carole’s Connections
CLICK: DANA BERMAN
% View my connections. SHOWS % View my connections. SHOWS OUR OUR SHARED CONNECTIONS:
MARK ROSCH
SHARED CONNECTIONS: MARK
ROSCH
LINKEDIN: LINKED TO ONE OF CAROLE’S CONNECTIONS LINKEDIN: LINKED TO ONE OF CAROLE’S CONNECTIONS
LINKEDIN—MORE OF C S PROFILE-SHOWS MY PAST
POSITIONS, EDUCA, RECOMMENDATION…
LINKEDIN—CAROLE’S FULL PROFILELINKEDIN—CAROLE’S FULL PROFILE
LINKEDIN—MORE OF C’S PROFILE-SHOWS MORE
DETAILS
LINKEDIN—CAROLE’S FULL PROFILELINKEDIN—CAROLE’S FULL PROFILE
LINKEDIN—E-MAIL RE: NETWORK UPDATES. SHOWS WHO MY NETWORK CONNECTIONS ARE NOW
CONNECTED TO/SHOWS A NEW GROUP AND A REC BY BEN SCHORR OF SHARON NELSON…TELLS ME
WHERE P ARE TRAVELING TO
LINKEDIN—NETWORK UPDATES E-MAILED TO CAROLE RE: HER CONNECTIONS’ ACTIVITIES
LINKEDIN—NETWORK UPDATES E-MAILED TO CAROLE RE: HER CONNECTIONS’ ACTIVITIES
LINKEDIN ADVANCED PEOPLE SEARCH by keywords, industry (law practice, legal servicses), user type (consultant),
location... Search “elec discovery” recognizes quotations marks
SEARCH: “electronic discovery”
LINKEDIN – ADVANCED PEOPLE SEARCH BY KEYWORDS, INDUSTRY…
LINKEDIN – ADVANCED PEOPLE SEARCH BY KEYWORDS, INDUSTRY…
LIST OF RESULTS: CLICK ON IAN BAGGER
LINKEDIN – RESULTS FOR ADVANCED SEARCH BY KEYWORDS, INDUSTRY…
LINKEDIN – RESULTS FOR ADVANCED SEARCH BY KEYWORDS, INDUSTRY…
I CAN SEE IAN’S FULL PROFILE B/C I AM LOGGED IN AND MY CONNECTIONS (ALEX) HAVE A CONNECTION TO 1 OF IAN’S CONNECTIONS. I CAN EMAIL HIM THRU LINKEDIN’S “INMAIL”—(IT’S ONLY FREE B/C HE HAS A PREMIUM ACCT AND ALLOWS SENDERS
TO EMAIL HIM-OTHERWISE MUST HAVE A PREMIUM ACCT TO SEND INMAILS) OR ADD IAN TO MY NETWORK.
LINKEDIN – IAN’S FULL PROFILELINKEDIN – IAN’S FULL PROFILE
SEND INMAIL, GET
INTRODUCED, ADD TO
NETWORK
HOW I AM CONNECTED TO
IAN
© Sheppard, Mullin, Richter & Hampton LLP 2009
Social Networking Websites: An Emerging Litigation Tool
Pre-trial Use of Social Networking
November 11, 2009
Daniel L. Brown, Esq.Sheppard, Mullin, Richter & Hampton LLP
[email protected](212) 653-8700
2
Topics Investigation
Discovery
Risks Associated With Use
3
Have you considered the opportunity to improve your case through a social network targeted investigation?
Similarly, is your client prepared to have his social networking activities investigated?
If not, it’s time to do so.
Social Networking Investigations
4
Employees at some law firms are already performing searches of MySpace and Facebook for both criminal and civil cases as part of their regular job duties.
Consider the opportunity to improve your case with social network targeted searches.
Social Networking Investigations Are Becoming Commonplace
5
Social Networking Investigations
But what can I really find on a social networking site that might be useful to my case?
6
But what can I really find on a social networking site that might be useful to my case?
Consider the statistics: Your adversary may very likely participate in social networking.
Profiles, postings, and connections contain a plethora of potentially useful evidence or other helpful information for your case.
7
Social Networking Investigations For example, Facebook users create a profile, which includes:
– Contact Information– Educational – Employment history– Online and offline contact information/residence – Users belong to networks which associate them with a city, college, employer, club,
etc.– Users upload photos and videos or are “tagged” in pictures posted by friends. – Wall postings where other users can post public messages, links etc. – Status updates, which contain real time messages– Messages– Friends lists– E-mail and “chat” real-time communication– Videos
A fully filled out Facebook profile contains over 40 pieces of personal information.
8
Potential Uses of A Social Networking Investigations
– Gain information about your opposition, and his or her case.
– Identify potential witnesses.
– Research potential jurors. See Trial Consultants Add Facebook/MySpace to Juror Research Toolbox, Molly McDonough, A.B.A. J., Sept. 29, 2008.
– Your judge and opposing counsel might also be networking.
– Users often indicate that they will be attending an event if itspromoted on Facebook. Consider this when trying to serve a subpoena on an elusive witness.
9
Potential Uses of A Social Networking Investigations
CLIENT INVESTIGATIONS
Conduct due diligence on potential clients.
Warn clients about the risks of their own use.
10
THE BOTTOM LINE
Social networking sites are potential discovery goldmines.
Consider a social networking targeted investigation.
Your client needs to know that his or her social networking use will be investigated.
11
DISCOVERY TOOLS
12
Social Networking And The Discovery Rules
FRCP 26 Document Requests: Seek production of relevant evidence.
FRCP 33 Interrogatories: Identify potential social networking usage.
FRCP 34 Requests for Admission: Authenticate the results of your
investigation
Depositions
Third-Party Discovery
13
Social Networking And The Discovery Rules
FRCP 26 Initial conferences:
Ask about social networking presence
Discuss production and preservation
Consider whether a litigation hold is necessary (for your client) or should be requested (of your adversary)?
14
Social Networking And The Discovery Rules
Deposition
Attack credibility Discover usage and establish relevance
Third-Party Discovery- Are “friends” fair game for discovery? Probably not, but what if they belong to the same networks?
Consider subpoenas to social networking hosts
15
Subpoenas to Social Networking Hosts
Stored Communications Act, 18 U.S.C. §§ 2701-2702 et seq.
"a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.”
In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606 (E.D. Va. 2008), (quashing subpoena seeking e-mail records of two investigators directly from America Online) (affirming ruling quashing subpoena to America Online seeking e-mails and other information relating to the accounts of non-party witnesses, stating “the statutory language of the [Stored Communications Act] does not include an exception for the disclosure of electronic communications pursuant to civil discovery subpoenas.”
However, a Court can require you to provide consent.
16
How Information Contained On Facebook Can Be Used In Discovery
To Attack Credibility
To Discover Character Evidence
To Dispute Damages
Te determine/rebut state of mind
To Identify Witnesses/Establish connections
To serve a pleading
17
Social Networking Websites May Be Particularly Useful For Certain
Types of Cases Personal injury Divorce Child Custody Loss of enjoyment of life claims Criminal proceedings Workers comp
18
Facebook DiscoveryPractical Tips
Conduct your own search
Hire a specialist
Ask about social networking presence in discovery, and utilize traditional discovery tools
19
RISKS ASSOCIATED WITH THE USE OF SOCIAL NETWORKING
WEBSITES
20
Won’t My “Privacy” Settings Protect Me From Discovery?
In order to limit access to their information, Facebook users can set different privacy settings for their “profiles” and pages.
As a result, some profiles are available to non-members (i.e., the public) and can be found through simple search engine queries.
Other users limit access to only members, only “friends” or only to a select few.
Your Privacy Settings could limit the information discovered in an investigation.
BUT, during discovery, there is no assurance of privacy!
21
Won’t My “Privacy” Settings Protect Me From Discovery?
Courts have already begun to find social networking sites to be relevant.
Therefore, you must know the risks…
22
President Obama’s Practical Tip For Future Litigants
“Well, let me give you some practical tips. First of all, I want everybody here to be careful about what you post on Facebook, because in the YouTube age, whatever you do, it will be pulled up again later somewhere in your life.”
23
What About My Privacy Settings?Once litigation commences, your privacy preferences give way to liberal discovery rules.
Consider the relevance of your social networking information, i.e., “evidence having any tendency to make the existence of any fact that is of consequences to the determination of the action more probable or less probable than it would be without the evidence.” Federal Rule of Evidence 401
24
Privacy Settings?During discovery, your “private” information will only remain private if the information sought is neither relevant nor likely to lead to the discovery of admissible evidence.
25
The Release of Your Private Information Might Not Just Be Embarrassing, It Could Be Dispositive.
Information found on a profile page, if admissible, can be used as the “smoking gun” evidence if found admissible
Cheating spouses beware: Time Magazine reports that divorce lawyers view social networking sites as an “evidentiary goldmines.”
Even if not case, dispositive, information found on profile pages can be used to discredit testimony.
26
IS A SOCIAL NETWORKING MIRANDA WARNING NECESSARY?
Social Networking Evidence Will Be Used Against You: Already being used as evidence at the sentencing stage of criminal
proceedings. See United States v. Villanueva, No. 08-12911, 2009 U.S. App. LEXIS 3852, *7 (11th Cir. 2009). (post-conviction images on defendant’s MySpace page of the defendant holding an AK-47 with a loaded clip taken after the defendant had been convicted of a violent felony could be used as evidence to enhance sentencing).
Already being used as evidence of intent and planning. See People v. Liceaga, No. 280726, 2009 Mich. App. LEXIS 160, *7 (Mich. Ct. App. Jan. 27, 2009) (in a murder trial, photographs discovered on thedefendant’s MySpace page admitted as evidence of intent and planning.Defendant’s profile Web page contained photographs of himself and the gun allegedly used to shoot the victim, and in which he was displaying a gang sign).
27
Various Risks/Uses Are Possible Non-custodial parents have used photographs posted on their child's Facebook
profile to discredit the custodial parent's parenting skills. See W.R. V. v. S.L. V., [2007J N.S.J. No. 354 (Sup. Ct.) at para. 31, T. K. B. v. PMS., [2008J B.C.J. No. 1923 (Sup. Ct.) at para. 16.
Moreno v. Hanford Sentinel, Inc., 172 Cal. App.4th 1125 (2009) (posting on MySpace.com was considered sufficiently publicized that the poster waived privacy rights).
A British Columbia court found that a plaintiff’s late-night computer usage on Facebook, as maintained in log in/log out records on his hard drive, was relevant evidence to his personal injury claim against his employer. See Pamela Pengelle, Spend Long Hours on Facebook? Claim You Can’t Work and You’re on the Hook!, Res Ipsa Loquitur, April 22, 2009, (citing Bishop v. Minichiello, B.C.J. No. 692 (S.C.J.) (2009).
28
Risks For Members of the Bar, And Bar Applicants
Florida Supreme Court Upholds Sanction Against Lawyer Who Called Judge a “Witch” on a Blog. See http://jonathanturley.org/2009/09/30/florida-supreme-court-upholds-sanction-against-lawyer-who-called-judge-a-witch-on-a-blog/
See Facebooking Judge Catches Lawyer in Lie, Sees Ethical Breaches, Molly McDonough, A.B.A. J., July 31, 2009. (Judge used Facebook to discover that attorney who asked for a continuance due to a death in the family was drinking and partying for that week).
Florida Bar Examiners considering reviewing Facebook profiles of applicants– e.g. to see whether you have a history of abuse or lying
North Carolina Judge reprimanded for “friending” an attorney and posting specifics about the case
29
CONCLUSION "[a] party who maintains a private, or limited
access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action. Leduc v. Roman, [2009] O.J. No. 681 (S.C.J.)
NYI_4223655v1
Social Networking Websites: The Emerging Litigation Tool
Admissibilityand Ethics Issues
November 2009
Steven C. Bennett Jones Day –New York
[email protected](212) 326-3795
NYI_4223655v1 2
Presenter Background
• Partner, Jones Day (New York office)• Commercial Litigation• Chair, Jones Day E-Discovery Committee• Member, Sedona Conference Working Group on
E-Discovery• Member, New York State Bar Association
Committee on E-Discovery• Adjunct Professor, Rutgers Law School, New
York Law School, Fordham Law School
NYI_4223655v1 3
Disclaimers
• The views expressed are solely those of the presenter, and should not be attributed to the presenter’s firm or its clients.
• This presentation does not constitute legal advice; nor does it constitute solicitation of an attorney/client relationship.
NYI_4223655v1 4
Topics Covered
• Admissibility issues• Ethics issues• Best practices• Further information
NYI_4223655v1 5
Admissibility Issues
NYI_4223655v1 6
Lorraine v. Markel American Ins. Co.,241 F.R.D. 534 (D. Md. 2007)
• Garden variety coverage dispute involving question whether lightning had caused damage to hull of plaintiff’s boat
• Parties attached ESI (primarily emails and attachments) to motions for summary judgment, but Court denied motions because neither party laid proper foundation for admission of ESI.
• The Court issued a 101 page decision setting forth the standard it would deem acceptable to authenticate ESI for admissibility.
NYI_4223655v1 7
• The Court in Lorraine states:– “Very little has been written ... about what is required
to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes ‘such facts as would be admissible in evidence’ for such use in summary judgment practice.”
– “[Considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted.”
NYI_4223655v1 8
Threshold Issues
• Relevance• Burden/prejudice/cumulative• Admissible ≠ dispositive• Subject to cross-examination, contrary
evidence, arguments about weight• Judge is gatekeeper
NYI_4223655v1 9
Relevance of ESI
• Rules 401, 402, and 105– Does the ESI have “any tendency to make the
existence of any fact that is of consequence to the determination of the actionmore probable or less probable than it would be without the evidence.”
– Relatively low threshold; once admitted, the trier of fact determines the weight of the evidence.
NYI_4223655v1 10
Authentication of ESI: FRE 901(a)
• Provides that the authentication of a document is “satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
• Rule 901 requires a “foundation from which ajury could reasonably find that the evidence iswhat the proponent says it is…”
United States v. Safavian, 435 F. Supp. 2d 36 (D.C.C. 2006).
NYI_4223655v1 11
Authentication of ESI: FRE 901(b)
• Rule 901(b)(1)-testimony by a witness with knowledge that a matter is what it is claimed to be
• Rule 901(b)(3)-comparisons by the trier of fact or expert witnesses with specimens which have been authenticated. Safavian, 435 F. Supp. 2d at 40
• Rule 901(b)(4)-identified by “appearance, contents, substance, internal pattern, or other distinctive characteristics, taken in conjunction with the circumstance. United States v. Siddiqui, 235 F.3rd 1318 (11th Cir. 2000)
NYI_4223655v1 12
Authentication of ESI: FRE 901(b)(9)
• Rule 901(b)(9)- authentication by evidence “describing a process or system used to produce a result and showing that the process or system produces an accurate result.”
• A safe foundation can be established with the strict approach of In re Vee Vinhnee, 336 B.R. 437 (9th Cir. BAP 2005)
NYI_4223655v1 13
Authentication of ESI: Typical Challenges
• Challenge the authenticity of both computer-generated and computer-stored records by questioning whether the records were altered, manipulated, or damaged after they were created.
• Question the authenticity of computer-generated records by challenging the reliability of the computer program that generated the records.
• Challenge the authenticity of computer-stored records by questioning the identity of their author.
NYI_4223655v1 14
Authentication of ESI: Expert Questions
• What is the evidence, or what does it purport to be?Forensics Expert: “This is a printout of data that I recovered on 4/26/07 from the hard disk drive primarily used by John Doe of the Acme Corporation.”
• Where did it allegedly come from?Forensics Expert: “The hard drive was taken from the office of John Doe on 1/1/07. It was contained within a Generic PC bearing model XXXX and S/N YYYY.”
• Who created, discovered, or recovered it?Forensics Expert: “The data appears to have been created by John Doe. I discovered and recovered it from his hard disk drive using computer forensic techniques.”
• How was it created, discovered, or recovered?Forensics Expert: “I made an image of the hard disk drive using a forensic imaging device. This device is designed to make a perfect copy of a disk and does not alter the data on the disk being copied.”
NYI_4223655v1 15
Authentication of ESI: Websites
• Hutchens v. Hutchens-Collins, 2006 WL 3490999 (D.Or. 2006)– Defendant hired forensic vendor to download content of
website pages to “write-only” CD-ROM’s.– Website freely available on internet.– Vendor tracked registered domain name to plaintiff’s
corporation through publicly available WHOIS system.– Court held totality of circumstances sufficient to
authenticate website documents.
NYI_4223655v1 16
Authentication of ESI: Chat Rooms
United States v. Tank, 200 F.3rd 627 (9th Cir. 2000).• The court held gov’t adequately authenticated chat room
log printouts maintained by a co-defendant.• The government evidence included testimony from the co-
defendant about the procedure he used to create logs and his recollection that logs appeared to be accurate representation of conversations among members.
• Despite co-defendant’s deletion of portion of log to free up space, log was authenticated. Deletions would go to weight of evidence, not admissibility.
NYI_4223655v1 17
Rule 1003: Duplicates are Admissible
• A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
NYI_4223655v1 18
Original Evidence Rule: Printouts
• Printouts of ESI are admissible pursuant to the best evidence rule.
• “If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original”.” Rule 1001(3).
NYI_4223655v1 19
Review of ApplicableEthics Rules
NYI_4223655v1 20
Model Rules Not Uniform
• Nearly all states have adopted some form• Variations/modifications• Individual interpretations (e.g., New York)
NYI_4223655v1 21
Limited Authority OnSocial Networking
• Model Rules do not expressly mention• Reason by analogy: email, web sites, chat
rooms
NYI_4223655v1 22
Potentially Applicable Rules
• Model Rule 4.1: lawyer may not make false statement of material fact to third person
• Model Rule 4.2: lawyer may not communicate with represented party, about subject of representation, without consent of other lawyer
• Model Rule 8.4(c): lawyer may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation
NYI_4223655v1 23
Lawyers And Investigators (Sometimes) May Hide Identity To
Gain Information• Prosecutors/under cover investigations• Civil claims: IP infringement, civil rights
But:• No surreptitious retrieval/review of email.
See NYSBA Comm. On Prof’l Ethics, Op. 749 (2001).• May not use private investigator to record conversations
with employees of adversary.See Midwest Motor Sports v. Artic Sales, Inc., 347 F.3d 693 (8th Cir. 2003).
NYI_4223655v1 24
Parties (Sometimes) May Contact Other Parties Directly
• Party free to contact other parties (and witnesses). MR 4.2, cmt. 4.
• No ethics rules prevent direct contact. See Fidelity Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co., 2002 WL 1433717 (N.D. Ill. July 2, 2002).
• Lawyer may not “mastermind” contact with represented party. Trumbull Cty. Bar Assoc. v. Makridis, 671 N.E. 2d 31 (Ohio 1996) (plaintiff’s lawyer wrongly suggested client contact defendant about proposed testimony, shortly before trial).
NYI_4223655v1 25
Approaching A Witness In Cyberspace
• Cannot use third-party to “friend” a witness, to gain information. Phil. Bar Op. 2009-02
• “Deceptive” not to reveal connection to lawyer, and intent to gain information for litigation
NYI_4223655v1 26
Further Resources
NYI_4223655v1 27
Web-Sites
• www.abanet.org (law practice management)• www.abanet.org (elawyering task force)• www.abanet.org (legal technology resource
center)• www.legalethics.com (focus on technology
issues)
NYI_4223655v1 28
Texts
• Robert F. Chapski, Embracing New Technology And Avoiding Its Pitfalls, 50 DRI For The Defense (Oct. 2008)
• Anthony E. Davis & David J. Elkanich, A Lawyer’s Guide to Managing E-Lawyering Risks(2006)
• Cydney Tune & Marley Degner, Blogging And Social Networking: Current Legal Issues, 962 PLI/Pat 113 (Mar. – Apr. 2009)
NYI_4223655v1 29
Questions