Social Media & LitigationPBA Solo and Small Firm Conference

Bedford Springs, July, 2015

SARA AUSTINAUSTIN LAW FIRM, LLC

JENNIFER ELLISLOWENTHAL & ABRAMS, PC / JENNIFER ELLIS, JD, LLC

ANITA PITOCKLOWENTHAL & ABRAMS, PC

Today’s Session

Impact of Social Media on Litigation Gathering Social Media Evidence Use of Social Media in Personal Injury & Medical

Malpractice Litigation Use of Social Media in Employment Law and Business

Litigation Ethical Issues (Throughout the Presentation)

Competence With Technology

Underlying all use of technology is Rule 1.1

New comment added as a result of work by American Bar Association

Adopted by Pennsylvania

Lawyers must,“keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal requirements to which the lawyer is subject.”

What Does Competence With Technology Mean?

Must be aware of what kind of technology is required in your practice Must be aware of risks and benefits

Must manage the risks

Any technology you choose to use Must be aware of risks and benefits

Must manage the risks

How? Educate yourself

Hire competent assistance

In house or out of house

1.44 billion157 million daily in US & Canada21 min per day

1 billion users4 billion views per day6 billion hours per month

600 million22% online adults at least once per month

300 million53% of 18-2960.3 million US

70 million80% women42% of online adult US Women550 million

50% of People Read Blogs

332 million40% check daily107 Million US17 minutes monthly

97% lawyers listed200,000 active lawyersOver 6 million questions

Why Social Media Matters

Social Media Can Destroy Cases

Publication of Confidential Information

Lawyers Get in Trouble Too

Pretending to be Someone Else

Improper Use to Influence Court

Loss of Immunity

Publication of pleadings and other documents can cause the loss of immunity from defamation.Sunstar Ventures, LLC. v. TiganiBochetto v. Gibson (lawyer faxed

complaint to press)

What Advice Should You Give Your Clients?

How Can You Protect Yourself?

What Should You Do at the Start of the Case?

Accessing Data Privacy Controls

Legal Issues Don’t violate computer access laws

Hacking into accounts

Using passwords without permission

Make sure clients don’t violate the laws Hacking

Keycaps and other malware programs

Going beyond permissible access

Ethical Issues No connecting to opposing side

Must be honest if seeking to connect to witness

Ok to research jurors May not connect

Data Preservation

Privacy Controls

The Plaintiff

The Defendants

Facebook and Privacy Settings

Privacy settings have a huge impact on what you can seeFriends can see a lotPublic can only see what owner

of account allows

Famous Last Words

“I thought it was private!”

What the Public Can See

No Information

Publicly Shared Photos

What the Public Can See

Looks Like Curtis Doesn’t Post Much

What Friends Can See

Details Curtis has shared

Posts by Others on Curtis’ Wall

Friends

What Friends Can See

Check Ins to locations

Interests Posts

and Answers

Individual Posts and PicturesChoose Who Sees What

Back to Curtis D. Ellis v. Millie, Rami & Angelou

Curtis is friends on Facebook with Rami and JenniferNot with Millie or Angelou

Curtis tags Rami and Jennifer in postsRami and Jennifer’s friends see posts where tagged

Jennifer and Rami are friends with all involved

A lot of data can be accessed as a result

Legal Issues

Subpoena Sites for Data?

Subpoena Sites for Ownership

Violating the Law

Federal

Electronic Communications Privacy Act:18 USC § 2510-2522 Includes computer based communications Includes stored communications

Federal

18 USC § 2511Interception and disclosure of wire, oral,

or electronic communications prohibited

Intentionally discloses, or endeavors to disclose, to any other person the contents of any…communication…

Pennsylvania

Unlawful use of computer and other computer crimes. (3rd Degree Felony) - 18 § 7611Accesses or exceeds authorization to access Provides password or other information allowing

access to a third party

Spoliation

Discovery of Social Media

Tell Us About Your Practice Areas

Interrogatories and Depositions

What Happens in Court?

FoundationBest EvidenceRelevanceAuthentication

Use

Social Media & LitigationPBA Solo and Small Firm Conference

Bedford Springs, July, 2015

SARA AUSTINAUSTIN LAW FIRM, LLC

JENNIFER ELLISLOWENTHAL & ABRAMS, PC / JENNIFER ELLIS, JD, LLC

ANITA PITOCKLOWENTHAL & ABRAMS, PC