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Searching social media for relevant material can be a crucial element of your discovery process. From photos to witness statements, from video to admissible information concerning damages, a person's social media accounts can be a treasure trove of evidence. However, getting the most out of social media in discovery requires a deft touch. Part 4 of my presentation, The Ethics of Social Media, will give you a better understanding of how to approach social media in discovery.
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THE ETHICAL IMPLICATIONSOF SOCIAL MEDIA
Brian C. Focht
Stiles Byrum & Horne, LLP
www.thecyberadvocate.com
THE ETHICS OF SOCIAL MEDIA
PART 4:
SOCIAL MEDIA IN
DISCOVERY
SOCIAL MEDIA & THE COMPETENT ATTORNEY
NC RULES OF PROFESSIONAL CONDUCT
Important Provisions
1.1 – Competence
1.6 – Confidentiality
3.3 – Candor Toward the Tribunal
3.4 – Fairness to Opposing Party and Counsel
3.5 – Impartiality and Decorum of the Tribunal
4.2 – Communication with Persons Represented by Counsel
8.2 – Judicial and Legal Officials
SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Requesting Social Media in discoveryApplicable Rule(s): 1.1, 3.4, 4.2, 5.1, 5.3To Comply: Know when you should request Social Media in discovery; refrain from fishing expeditions
Understand when it’s necessary for your case
Narrowly tailor your requests
Know the limits of ethical research
SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Requesting Social Media in discoveryApplicable Rule(s): 1.1, 3.4, 4.2, 5.1, 5.3To Comply: Know when you should request Social Media in discovery; refrain from fishing expeditions
Tips:
1. Don’t accidentally limit your request by listing specific social media sites
2. Picture-based SM such as Flickr, Picasa and Instagram can be treasure troves
SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Requesting Social Media in discoveryApplicable Rule(s): 1.1, 3.4, 4.2, 5.1, 5.3To Comply: Know when you should request Social Media in discovery; refrain from fishing expeditions
Tips:
REMEMBER: Just because you CAN request it doesn’t mean you SHOULD
SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Requesting Social Media in discoveryApplicable Rule(s): 1.1, 3.4, 4.2, 5.1, 5.3To Comply: Know when you should request Social Media in discovery; refrain from fishing expeditions
Example Request:“[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 condition, or your activities on days when you requested FMLA leave.”
Wilkinson v. Greater Dayton Reg’l Transit Auth., 2014 U.S. Dist. LEXIS 64522, 9 (S.D. Ohio May 9, 2014).
SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERY Recent Decisions
Salvato v. Miley, No. 5:12-cv-635 (M.D. Fla. June 6, 2013) - In action against sheriffs’ deputies, requesting defendant’s entire Social Media history was unnecessary fishing expedition
SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERY Recent Decisions
Moore v. Miller, No. 1:10-cv-651 (D. Colo. June 6, 2013) - In personal injury action, plaintiff’s entire Facebook account history was discoverable
SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERYRecent Decisions
Giacchetto v. Patchogue-Medford Union Free Sch. Dist., No. CV 11-6323 (E.D.N.Y. May 6, 2013)
- Discovery requests for all Social Media too much, but relevant posts discoverable - If so requested, it is the responsibility of the responding party’s attorney to review the client’s social media for relevant material, NOT the client themselves.
SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERYRecent Decisions
Howell v. Buckeye Ranch, Inc., No. 11-cv-1014 (S.D. Ohio Oct. 2012) - Discovery of Social Media subject to “traditional relevance analysis”
SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERYLaws to Know
Stored Wire and Electronic Communications Privacy Act - Social Media companies will frequently object to subpoenas for production of records of customers’ social media accounts based on the provisions of this statute.
SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Responding to discovery requests for SMApplicable Rule(s): 1.1, 3.3, 3.4To Comply: Produce relevant evidence; defend clients from overbroad requests, fishing expeditions.
Same ethical obligations as any other discovery response
N.C. State Bar v. Graves, 50 N.C. App. 450, 274 S.E.2d 396 (1981) - Intentionally encouraging concealment of material facts relevant to the matter is prejudicial to administration of justice.
SOCIAL MEDIA & THE COMPETENT ATTORNEY
BEST PRACTICES:1. Remember: THE RULES STILL APPLY
2. Learn about Social Media, and how to use it – it’s the best way to know what you can find in a party’s social media
3. Always do your due diligence.
THE ETHICAL IMPLICATIONSOF SOCIAL MEDIA
Brian C. Focht
Stiles, Byrum & Horne, LLP
www.thecyberadvocate.com
![Be Social, Not Liable · 2020-07-15 · Discovery [Social media posts] if relevant, are not shielded from discovery merely because plaintiff used the services privacy settings to](https://img.pdfslide.us/doc/110x75/5f55a76b59c3127d7631a1a0/be-social-not-liable-2020-07-15-discovery-social-media-posts-if-relevant-are.jpg)
