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Discussion Overview

Social Media Discovery: why, where, what, and who

The How of Social Media Discovery

» Authenticity challenges

» Learning to social media collection

Social Media Tips

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Social Media: a staple in everyday communication

Number of Active FB

Users (millions)

In July 2012, Americans collectively spent 121 billion minutes using social media - almost a quarter of 521 billion minutes spent online

» Compare to July 2011, where Americans spent 88.4 billion minutes using social media

In October 2012, Facebook surpassed 1 billion users

» Twitter reported 500 million users by February 2013

– Approximately two new members joining per second

» Linkedin at 150 million users in 2012

-Nielsen, State of the Media: The Social Media Report (2012)

Social media impacts all aspects of the practice of law and representation of clients:

» Discovery – Social media data can be fully discoverable.

» Trial – Social media data can be admissible as evidence.

» Ethics – Dealing with social media raises unique ethical issues.

» Policy Development – Corporations are looking to lawyers to help with social media policies.

» Privacy – Because of the personal, yet public, nature of social media, diverse privacy concerns exist.

» Licensing – A lawyer’s individual conduct on social media sites can impact admission and standing in the Bar.

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Why lawyers should care about social media

Where does discoverable social media reside?

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» Comments & Messages

– Tweets, wall comments, status updates, posts

» Photos

– Profile pictures, albums, pictures others tag you in

» Videos

» User Information

– LinkedIn resume, things ‘liked,’ username, date of birth, location, employment & education info, groups joined

» Metadata

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• Court ordered production of data from Facebook and MySpace account: privacy is “wishful thinking”

•Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y.Sup. Sept. 21, 2010).

• Plaintiff ordered to preserve existing information on MySpace and Facebook: provide user names and passwords to opposing counsel

•McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson Sept. 9, 2010).

• Court ordered production of user names and passwords: private portions of social media accounts are “fair game”

•Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (C.P. Northumberland May 19, 2011).

What social media information is discoverable?

You post User Content ... on the Site at your own risk. Although we allow you to set privacy

options that limit access to your pages, please be aware that no security measures are perfect or

impenetrable.

- Romano v. Steelcase Inc. (citing Facebook’s privacy policy (last viewed June 18, 2009))

Early disputes: public versus private information

» What about the private sections of your Facebook?

Who do I seek information from when cooperation ceases?

Prohibits:

» Electronic Communication Service (ECS) and » Remote Computing Service (RCS) providers

From:

» knowingly divulging the contents of » a communication » it stores

Unless the divulgence is:

» to an intended recipient of such communication or » express permission from the sender is obtained

Does the Stored Communications Act prohibit production of social media?

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Who do I seek information from

when cooperation ceases?

Seek court order to obtain party’s

login information?

Subpeona social

networking site

provider?

• Crispin v. Christian Audigier Inc., 717

F.Supp.2d 965.

• Zimmerman v. Weis Markets, Inc., No. CV-

09-1535.

• McMillen v. Hummingbird Speedway, Inc.,

No. 113-2010 CD.

Authenticity Challenges

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Procedural Posture

• Murder conviction appeal

• Defendant challenges admissibility of

postings on three MySpace pages

admitted at trial on authenticity grounds

• Court looks to circumstantial evidence

The point at which a reasonable jury could

have found that the MySpace pages were

created and maintained by the defendant

The state’s total circumstantial evidence

- 358 S.W.3d 633 (Tex. Crim. App. Feb 8, 2012)

Tienda v. State

Best Practices

» Consider social media production problems (e.g. native format) upfront when negotiating at the Rule 26(f) meet and confer

» Don’t try to collect social media without consent of the owner

» Don’t get overwhelmed: consider enlisting the help of an investigator or service provider if a case size is massive or deadlines are tight

» Communicate to your client the importance of prior postings to litigation and the far reaching repercussions of spoliation sanctions

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Learning to Collection

Social Media Tips: “False Friending”

A lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent

» NY State Bar Association – Formal Opinion 2010-2

An attorney must disclose his true intentions when attempting to access social media, noting other ethical rules prohibit attorneys from engaging in dishonesty, fraud, deceit or misrepresentation

» Philadelphia Bar Association Professional Guidance Committee – Ethics Opinion No. 2009-02

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THOU SHALT

NOT FALSE FRIEND

Social Media Tips: Lawyers are Social Creatures

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Attorney wrote on blog that

judge was:

FL Bar reprimanded

and fined the attorney:

Lawyer asked for a

continuance because of

father’s death

Facebook posts

detailing her week of partying

Social Media Tips: Best Practices

Organizations should:

» Control access

» Monitor usage

» Articulate clear policies

» Ensure understanding

» Update, disseminate and make information accessible

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Onus is on organizations to set policies regarding

social media use in the workplace