Confronting Social Media at Depositions and Discovery

Mark Zamora

Where do you start?

(Hint: It’s not with your client)

Rule 1.1 Model Rules: ABA voted to amend the comment to Model

Rule 1.1, governing lawyer competence. In addition to keeping abreast

of changes in the law and its practice, a lawyer should keep abreast of

the benefits and risks associated with relevant technology.

Does your Contract/Letter Cover it?

We strongly encourage you not to participate in social media

(Facebook, Pinterest, Tumblr, Instagram, and the like) while

your case is ongoing.

Information found on social media websites is not private, can

be discovered by the at fault party who hurt you, and if

used as evidence may be potentially damaging to your

interests.

Understand that information shared with others in writing by

email, text message or even posted anywhere online could

result in a waiver of the�attorney client privilege were that

information to relate in any way to the legal matter that we

are handling for you.

In addition, you should not delete or remove information from

any social media website as that could be considered

destruction of evidence.

The Client Meeting

Your checklist:

What is on your client’s mobile phone?Tablet?

Discovery and Social Media – Works both ways

What is your plan?

Two tracks: Plaintiff and Defendant

Defendant: LOR :

1)Preservation Letter

2)Request for Copies

3)Request to Mirror Hard Drives

Plan for the Battle in front of Judge

Tailor your requests:

*Don't ask for the company's 265,000 page website or 5000

employee intranet

*Do ask for information you believe you will need logically –

prior iterations of the company mission statement; white

papers previously posted

Attorney Misconduct

1. 2012: Cope v. Prince. Def firm an insurer hired investigator to

access P’s “private” Facebook page.

2. 2012- NJ Attorney Ethics: Charges against two lawyers

claimed to have directed a paralegal to friend a party in

litigation. Claimed violation of contact with a represented

person. NEW 209:10 Jersey LJ (Aug. 30, 2012).

3. Ohio: Prosecutor fired, Facebook chats violated Ohio’s

requirement for truthfulness in the course of representation

because lawyer conducted the chats using a fake profile.

Test -Relevancy

Whether or not evidence might be admissible, or

reasonably calculated to lead to any evidence that

might be found material, or relevant in

determination of issues involved in proceeding.

Resisting party must show that the information sought

is of “such marginal relevance that the potential

harm occasioned by discovery would outweigh the

ordinary presumption in favor of broad disclosure.

Defendant's Most Common Discovery

a. Name and uniform resource locator (URL) address of the site;

b. The specific URL address of your account profile on the site;

c. Your account name and real names or pseudonyms you have used to identify yourself

on the site;

d. Your user ID or logon and password used to access your account on the site;

e. The dates that you used the site;

*****OR****

Any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social-networking sites from October 2009 (the approximate date Plaintiff claims she first was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as well as communications by or from Plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.

In Litigation

Any expectation of complete privacy? You know the

Answer

What must be shared? This is the frontline of the battle

Passwords: Must be turned over ? Yes say these cases

Gallion v. Gallion 2011 Conn. Super. Ct. Sept 30, 2011 (Divorce)

Gallagher v. Urbanovich, Pa. Ct. Common Pleas (PI)

Defendant assailant in a civil case ordered to turn over login and password

Mazzarella adv. Mt. Airy Casino Resort: 2009 PA State Court: Premises liability

case. Plaintiff ordered to turn over password and lo in info.

Gatto v. United Airlines and Allied Aviation Services., et al., No. 10-CV-

1090 (D.N.J. March 25, 2013)

Lesson of Gatto: Don't delete or modify if at all possible.

U.S. Magistrate Judge Steven Mannion ruled that the deletion of data in Gatto’s Facebook account constituted “spoliation of evidence,” defined as

the negligent or intentional destruction, alteration, or withholding of

evidence relevant to a legal proceeding. This resulted in an adverse

inference against Gatto – the inference that when a party destroys

evidence relevant to a legal case, they did so because that evidence was

unfavorable to them.

Limiting Access- Cases

Tompkins v. Detroit Metro. Airport, No. 10-10413, 2012 WL 179320, at *2 (E.D.

Mich. Jan. 18, 2012) (denying access to the plaintiff’s entire Facebook

account because the defendant had failed to show that all information was

relevant);

Mailhoit v. Home Depot CA, No. CV 11-03892 DOC (SSx), 2012 U.S. Dist. LEXIS 131095 (C.D. Cal. Sept. 7, 2012)

Judge Segal reviewed a comprehensive request for social media discovery. The Court concluded that the requests failed to comply with the Federal Rules of Civil Procedure. Segal specifically noted that “several courts have found that even though certain [social media] content may be available for public view, the Federal Rules do not grant a requesting party ‘a generalized right to rummage at will through information that [the responding party] has limited from public view’ but instead require ‘a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.’”

Limiting Access

Chauvin v. State Farm Mutual:2011 U.S. Dist. LEXIS 121600 (Oct. 20, 2011)

Defendant failed to meet the initial threshold of showing that the requested information was

reasonably calculated to lead to the discovery of admissible evidence as the public portions of

the plaintiff’s Facebook account contained no evidence that she was engaging in activities

inconsistent with her injury claim.

Caraballo v. City of New York,

http://www.courts.state.ny.us/Reporter/pdfs/2011/2011_30605.pdf

Defendant sought “current and historical Facebook and Twitter pages and accounts, including

all deleted pages and related information” In the opinion of this Court, digital “fishing

expeditions” are no less objectionable than their analog antecedents

Richards v. Hertz Corp.

http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2012/D34155.pdf

Due to the likely presence in McCarthy's Facebook profile of material of a private nature that is

not relevant to this action, the Court should conduct an in camera inspection of all status

reports, emails, photographs, and videos posted on McCarthy's Facebook profile.