Upload
daryl-crispin
View
212
Download
0
Tags:
Embed Size (px)
Citation preview
The Social NetworkYour Best Friend for Investigating
and Defending Claims
Erik P. CrepWicker, Smith, O’Hara, McCoy & Ford, P.A.
Miami, Florida
What is “Social Media”?Facebook
Vine
Keek
MySpace
YouTube
Photo Sharing
-- Shutterfly
-- Flickr
Dating Site
-- Match.com
-- Jdate.com
-- Eharmony.com
-- Mysugerdaddy.com
Business Networking
Blogs/Online Journals
Social Media Sites
Social Media in Litigation
Social Media is relevant and significant in many area of litigation:
- Medical Malpractice
- Errors and Omissions Cases
- Employment Litigation
- Construction
- Other Professional Lines (financial lines)
- Other – transportation; family law; bankruptcy; debt collection; personal injury defense
Uses of Social Media in Defending Claims
Social Media Sites Contain a HUGE amount of useful Information:
Photographs (vacation/mobile updates)
Videos
Admissions by Plaintiffs
Comments on Plaintiffs’ activities /life style
Locate other fact witnesses
Relationship status
Impeachment Material
Information on Expert Witnesses
FacebookCreated in 2004 by Harvard
student Mark Zuckerberg and 3 friends – in a dorm room
9 years later, more than 1 billion active users world-wide
As of December 31, 2012, over 680 million users use Facebook mobile products
Average Facebook user/Plaintiff
-- has over 130 friends
-- 15 hours & 33 minutes on Facebook per month
-- creates 90 pieces of content per month
• Facebook/Mobile Devices
-- 500 million access Facebook from mobile device
Facebook When searching for information on Plaintiff, your
insured, a witness or an expert:
• Use first names, last names, maiden names, middle names, nick names
• Narrow your search using Plaintiff(s)’ birthdates, cities they lived in, known employers, etc.
• Search other individuals who may live in Plaintiff(s)’ household – spouse, children, siblings, friends, etc.
• Search by email address and phone number (ex. Email address in medical records/history/incident reports)
Social Media Search Tips
Locate Plaintiff’s Accounts
Print off all public pages
Screen shots
Save digital photographs (Mobile Uploads can provide GPS data)
Create screen shots
Catalogue “Friends”
Create tickler system to check for updates
Do Not “Friend” a Judge Florida’s Appellate
Court – 4th DCA- said it violated Florida’s Judicial Ethics Code
“Judges do not have the unfettered social freedoms of a teenager”
Conveys to others the impression that these lawyer “friends” are in a special position to influence the judge
Do Not “Friend” a Plaintiff
• Never send a “friend” request to a Plaintiff
• Never “friend” request a witness or opposing expert
• Never have friends/family/staff do it either
Photographs
Comments to Pictures
Saving Color Photographs
Only allows for 140 characters
Pictures & Videos
Tweeters share commentary on events, what they are doing that very moment; court cases, news stories, politics, how they are feeling, etc.
550 million registered users
Over 340 million tweets daily
Average user tweets 307 times per year
43% of users use phone to tweet
Publicly visible by default
People Tweet Everything!
Caution – Twitter Story Potential Cisco Employee
Response from Cisco Manager
Twitter in Litigation:
Attorneys and consultants use Twitter to develop profiles of jurors, including their daily activities
Such as:
• Juror posting on Twitter might give info about how he may decide a case;
• Whether or not the juror has tweeted about similar court cases;
• How does a juror feel about attorneys trying the case? Paralegal? The Parties?
What Have Jurors Tweeted?
Defendant looks like a murderer. GUILTY. Waiting for opening remarks.
Guilty guilty … I will not be swayed. Practicing for jury duty.
So, Jonathan, what did you do today. Oh, nothing really. I just gave away TWELVE MILLION DOLLARS of some else’s money!
The lead plaintiff in the case. Since the first day of trial has had nothing to do, so he usually falls asleep which causes his head to bob up and down as he fights to stay awake.
+ =
•Social Media should be accessed during voir dire
•Facebook/Twitter/Instagram/Blogs, etc. can provide great insight into the
character of potential jurors
•1/3 of Facebook users do not have their pages set to private
Social Media and Jury Consultants
During the nearly two-month Casey Anthony trial, trial consultants would leave the courtroom at the end of each day and head for their computers. There, a team would monitor blogs, Facebook, Twitter to find out what was annoying people about Anthony – and tailor their defense accordingly.
Discovery Issues and StrategyTiming of online investigation –> the sooner the
betterLocate and go to Plaintiff’s Facebook, Linkedin,
Twitter Print off all public pagesPrint screen [ctrl + alt + print screen]Save all photographsCatalogue names and contact information for
“Friends”
------------Some Plaintiffs’ attorneys instruct clients to delete
photographs/postings harmful to case
-- Therefore, act fast. ASAP. Before Plaintiff retains an attorney.
Is Social Media DiscoverableRomano vs. Steelcase, 907 N.Y.S. 2d 610 (Suffolk Co.,
2010)
• Defense allowed to discovery information/pictures on Facebook – including all deleted or archived information
• No reasonable expectation of privacy for information posted on internet
• “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking”
Zimmerman vs. Weis Markets, 2011 WL 2065410 (Northumberland Co. Com.Pl 2011)
• Step further – required Plaintiff to provide user names & passwords to defense counsel to investigate [not the norm.]
• However – must be relevant and must have factual predicate
Social MediaHolter vs. Wells Fargo, 2011 WL 797144 (D. Minn. May
4, 2011)
• Social networking discoverable
• No login/password and no authorization
• Plaintiff’s attorney review and produce documents and picture
• Just as the Court would not give a party the ability to come into a party’s home and peruse computers to search for possible relevant information, Court did not allow Defendant to review social networking content to determine what it deemed relevant.
Barnes vs. CUS Nashville, 2010 WL 2265668 (M.D. Tenn June 3, 2010)
• Judge ordered that he (the Judge) would create Facebook page and require Plaintiff to “friend” him.
• Judge would then examine Plaintiff’s Facebook – including photographs – to determine what was relevant
Predicate Predicate Predicate!!!
Caraballo vs. City of New York, Index No. 10 103477-09 (NY Sup. Ct. March 4, 2011)
• No predicate = no records/pictures from Facebook or Twitter
• Digital fishing expeditions are no less objectionable than their analog antecedents
Habib vs. 116 Central Park, Index No. 108434-09 (NY Sup. Ct. March 2, 2011)
• No predicate why 80 year old Plaintiff would comment on claim/injury on social networking
Bavids vs. Novartis Pharm., 2:06-00431 (EDNY Feb. 24, 2012)
• Must be factual predicate, like an individual’s public posting, to obtain information on individual’s private page
How to Obtain Social Network Information?? Subpoena to Facebook/Twitter
- Not permitted to subpoena to social networking websites in civil lawsuit under Stored Communications Act, 18 U.S.C. § 2701, et. Seq.
Crispin vs. Christial, 717 F.Supp.2d 965 (C.D. Cal 2010)
Consent/Authorization from Plaintiff
Plaintiff produce all “private” photographs or other information
Obtain Plaintiff’s login and password
What About Spoliation Against Plaintiff?
Gatto vs. United Airlines, 10-cv-1090 (Dist. NJ April 2, 2013)
Plaintiff brought negligence action – against airline
Defendant airline provided authorizations to Plaintiff for Facebook records; eventually Plaintiff agreed
However, Plaintiff subsequently deactivated account – which was deleted 14 days later by Facebook
Defendant argued prejudice in its defense due to the destruction of evidence
Gatto vs. United Airlines continued
Defendant sought sanctions for spoliation of evidence
Court agreed – deactivation constituted spoliation
Facebook relevant for damages
Reasonably foreseeable that Plaintiff’s Facebook would be sought in discovery. Plus, Defendant requested information 5 months before account deactivated
Court Adverse Inference against Plaintiff
Steps to Obtain Information
Sent letter to Plaintiff asap, placing them on notice of intent to obtain social media materials
But … consider timing
Advise that sanctions will be pursued if materials are deleted
Once in litigation, send a request for production and interrogatories
Send authorization to obtain records directly from social media site
If Plaintiff fails to preserve data, seek sanctions
Actual Posts – No Self-Control
Twitter/Facebook Destroy Plaintiff’s Case
Plaintiff fracture arm and scar to forehead in MVA (liability case) – sought over $1 million
Tweet – starting “to love my scar” and “able to carry, with previously broken arm, a purse”
Posted photo of herself with large purse
Verdict for $142k
Actual Post from Case Alleges could not fully
extend her right arm
Alleges that she was limited in her daily activities
Alleges she didn’t like being the center of attention due to right arm injury and self-consciousness
Made unreasonable demand – but – 3 days before trial, this was uncovered
Actual Post from Case
Plaintiff on left
President of small college
Claimed she was depressed – largely due to her inability to shake hands
Really? Really? Really? Actual Plaintiff in a
Tattoo removal/malpractice case
Claims to be depressed and self-conscious about her body …
Posted: “For the first time, I can honestly say my life is perfect.”
Oops …
Social Media ConclusionFertile source of information re: Plaintiffs,
witnesses, experts, jurors and/or potential jurors
Predicate Predicate Predicate
It is unlikely that court decisions requiring disclosure will deter users from posting on these networks – people will still post
Social media will continue to increase popularity
Defense attorneys and claims professionals must use this media as a resource
“What To Do” • Sample Interrogatories (Exhibit “A”)
• Sample Request for Production (Exhibit “B”)
• Sample Authorization/Release to Facebook (Exhibit “C”)
Questions? Comments?
Erik P. Crep, Esquire
Wicker, Smith, O’Hara, McCoy & Ford, P.A.
2800 Ponce de Leon Blvd, Suite 800
Coral Gables (Miami), FL 33134
(305) 448-3939
Electronic Discovery
Electronic DiscoveryNearly 95% of all information is stored electronically
More than 70% electronic information never printed
North American businesses = 3.25 trillion e-mail per year & create more than 90% of their information in digital form
iPhone Storage Capability
- 16 GB - - 5,500 photographs
- 32 GB - - 11,500 photographs
- 64 GB - - 23,500 photographs
• More cell phones in world than toothbrushes
Hard Drive Capacity1 Gigabyte (GB) = 30
bankers boxes
1 Terabyte = 10 trailers of paper
10 Terabytes = Printed collection of the U.S. Library of Congress
Goal of Forensic Discovery
Capture ALL the data from the beginning sector of the hard drive to the last sector
Metadata “Data About Data”
(a)System Data
- like a card catalogue in a library
- computer file itself
- ex. Scanemployer.doc
- tells where file is located on the hard drive
(b)Metadata
- Similar to table of contents/index
- allows you to do keyword search
Forensic InformationEmails/Documents Pictures
Where originated
Altered?
File email was located in
- “dangerous docs”
- “bad tests/results”
• Metadata
- when changes made
- who made changes
- track changes
-drafts of documents
When taken
GPS location of where pic taken
Altered?
Every document has details
- Creator of the file
- Date of creation
- Storage Location
- Persons who had access to it
- Persons who viewed, copied, edited, forwarded or otherwise interacted with the file over its lifetime
- When, why and by whom any part of the document (including metadata) was modified or deleted
A Deleted File/Picture is not really Erased or Deleted
• Hard Drive are file cabinets
• Deleted files are placed in the empty area of the file cabinet
• Depending on the amount of data that is saved, eventually the deleted file will be overwritten
Electronic Data – Sensitive to Alteration
Real Email
Altered Email
Preservation of Electronic Evidence
General rule Once a party reasonably anticipates litigation, it must suspend its routine document retention and destruction policy and put in place a “litigation hold” to ensure preservation of relevant documents.
What to do when served with a “Litigation Hold”
Meet with client – become familiar with client’s document retention system and document terminology
Identify “key players” and confirm their policies on retention
Meet with IT personnel who can help with document production
Issue a thorough “litigation hold” to all employees who may have relevant information.
What to do during a “Litigation Hold”
Continually communicate with client to monitor preservation efforts
Take possession of data or ensure data is in a safe location
Document all steps taken to preserve discoverable data
Duty to Preserve EvidenceSpoliation of evidence:
… is the destruction or significant alteration of evidence or the failure to preserve property for use as evidence in pending or reasonably foreseeable litigation. West vs. Goodyear Tire & Rubber Co.,, 167 F.3d 776 (2nd Cir. 1999)
Destruction of EvidenceSonoMedica, Inc. vs. Mohler, 2009 WL
2371507 (E.D.VA July 28, 2009)
• 2 computers were subpoenaed for examination and the Court ordered parties to turn over computer “without it being touched except to turn it off”. A forensic expert discovered that before turning over the computers “22,603 files/folders had been affected and 556 were manually deleted. Court sanctioned party for $108,215.15.
Zubulake vs. USB Warburg
• $29 million verdict – spoliation of evidence against USB because the company destroyed email messages that were requested
Questions? Comments?
Erik P. Crep, Esquire
Wicker, Smith, O’Hara, McCoy & Ford, P.A.
2800 Ponce de Leon Blvd, Suite 800
Coral Gables (Miami), FL 33134
(305) 448-3939