Litigators’ Tool Box: Social Media (2011)


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This ABA TechShow presentation is for lawyers and companies who want to have a better understanding of the increasingly important role that social media plays in litigations around the country (and the world). Counsel need to understand that social media is a game changer, and a powerful tool that can be harnessed to win (or lose) a case.

For additional information on this presentation, please contact Antigone Peyton (

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Litigators’ Tool Box: Social Media (2011)

  1. 1. April 11-13, 2011 www.techshow.comLitigators Toolbox: Session Title Social Media Presenters Presenters Judge Herbert Dixon Sharon {Name} Nelson Antigone{Name} Peyton PRESENTED BY THE April 11-13, 2011
  2. 2. Social Media April 11-13, 2011
  3. 3. Social Media•  Internet forums•  Weblogs•  Social blogs•  Microblogging•  Wikis•  Podcasts•  Pictures•  Video•  Ratings•  Social bookmarking April 11-13, 2011
  4. 4. Facebook Stats•  April 2011: Nearly 600 million active Facebook users (50% daily users)•  Over 100 million w/public information•  Complete Facebook profile contains over 40 pieces of information (+wall posts & status updates)•  2/3 of comScore s Top U.S. websites integrated April 11-13, 2011
  5. 5. Some Global User Stats•  Twitter – 190 million•  LinkedIn – 75 million•  Plaxo – 40 million•  MySpace – 65 million April 11-13, 2011
  6. 6. Social Media: Advice For Clients•  The President s Advice: Well, let me give you some very practical tips. First of all, I want everybody here to be careful about what you post on Facebook, because in the YouTube age, whatever you do, it will be pulled up again later somewhere in your life. Obama warns U.S. teens of perils of Facebook, Sept. 8, 2009 (Reuters). April 11-13, 2011
  7. 7. How Long Does It Last?•  Approximately forever, so THINK before you post•  Twitter keeps all tweets•  April 14, 2010--Library of Congress announced that it is acquiring entire public archive of Tweets•  Facebook keeps posted info until deleted items are overwritten•  You can t control what others do with your posts/photos April 11-13, 2011
  8. 8. Deleted Does NOT Mean Deleted•  Computer forensics can recover data until overwritten•  May exist on social media servers until overwritten•  Someone else may have reposted or kept the data (e.g., wayback machine ) April 11-13, 2011
  9. 9. Social Media In Court•  Criminal proceedings- sentencing, alibi•  Evidence to discredit witness/impeachment•  Investigation tool- authorities, lawyers, and jury consultants April 11-13, 2011
  10. 10. The Power Of Social Media Evidence•  American Academy of Matrimonial Lawyers –  80% of members have seen a sharp increase in SM evidence –  One in five cases now involves FB evidence –  In the U.K. 1/5 of divorce petitions cite FB April 11-13, 2011
  11. 11. Regular Use Of Social Media•  Criminal law•  Employment law•  Personal injury law April 11-13, 2011
  12. 12. Its Not Yours Only•  Privacy preferences give way to liberal discovery rules in litigation•  Many rights are waived upon joining, or by default settings•  Information may be subject to subpoena•  Little to no expectation of privacy•  Leduc v. Roman (Quebec)-private Facebook page still discoverable April 11-13, 2011
  13. 13. Finding Evidence On Social Networking Sites•  The old days: little privacy, you could mine at will•  Today: the majority of people understand privacy settings•  Always check – many accounts are still open•  A friend might always provide info•  Deception is obviously unethical (on the part of the attorney or her staff)•  If someone else deceives (without your involvement), it will probably come in April 11-13, 2011
  14. 14. Social Media Ethics•  Phila. Bar Op. 2009-02 (3/2009)•  Lawyer had 3rd party send friend request to adverse witness•  Lawyer cannot do that for purposes of searching for otherwise private information on Facebook page•  Rules regarding non-lawyer assistants apply to third-party actions•  Concerns re: dishonesty, fraud, deceit or misrepresentation April 11-13, 2011
  15. 15. New York Bar Association •  (Sep. 24, 2010) Ethics opinion •  Attorneys can comb through PUBLIC areas of social media sites April 11-13, 2011
  16. 16. Service of Process•  London High Court allowed service of a court order to an anonymous blogger over Twitter•  Australian court allowed service of a default judgment through Facebook•  9th Circuit ordered e-mail service April 11-13, 2011
  17. 17. How To GetSocial Media Evidence•  Civil subpoenas were long honored•  Now ISPs are citing the ECPA and the SCA and challenging subpoenas•  18 U.S.C. Sec. 2702-2703 – can t divulge the contents of e-mails or other electronic records•  Some exceptions for law enforcement April 11-13, 2011
  18. 18. What Are Contents?•  It should be the substance of a message•  Attorneys have gotten odd responses –  Times of connections, IP addresses are content –  When challenged SM sites have backed down April 11-13, 2011
  19. 19. Leading Case•  In Re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 2008 U.S. Dist. LEXIS 39349 (E.D. Va. April 18, 2008)•  ECPA prohibits an e-mail service provider from producing customer s e-mail in response to a civil subpoena because it is not a disclosure exemption under the Act April 11-13, 2011
  20. 20. SCA vs. Social Media •  Crispin v. Christian Audigier, Inc. (C.D. CA. May 26, 2010) •  First case to hold that SCA applies to social networking sites •  Held that messages and comments visible to a restricted set of users were private •  Artist Crispin claimed Ds violated copyright – Ds wanted all MySpace and Facebook references to Ds •  Trying to fit facts into SCA (1986 law) – a very bad fit April 11-13, 2011
  21. 21. If You Sue…Your Life Is An Open Book •  EEOC v. Simply Storage Management (S.D. In. May 11, 2010) •  Permitted discovery of all relevant SM data whether or not it was private •  EEOC had sued on behalf of two women claiming sexual harassment •  Defendant employer sought the info April 11-13, 2011
  22. 22. Looking Ahead•  The information will probably still be discoverable and the respondent will have to provide it•  If they don t, attorneys will ask court to compel discovery April 11-13, 2011
  23. 23. How to Subpoena Facebook• help/?safety=law•  Facebook urges parties to resolve their discovery issues without involving Facebook•  Stored Communications Act, 18 U.S.C. § 2701 et seq. prohibits disclosure of all but basic subscriber info April 11-13, 2011
  24. 24. FB & User Both Have Access•  Unless user has terminated account, unknown how long data retained (was 90 days, believed to be less now)•  You must serve a valid California or Federal subpoena on Facebook. Out-of- state civil subpoenas must be domesticated in California. Facebook s registered agent for service of process: Custodian of Records, Facebook, Inc. c/o Corporation Services Company 2730 Gateway Oaks Drive Suite100 Sacramento CA 95833 April 11-13, 2011
  25. 25. What Does It Cost?•  $500 for each account•  $200 for expedited response•  30 days response time April 11-13, 2011
  26. 26. User Consent Forms•  Obsolete for Facebook, should work for any other sites•  Pursuant to a Rule 34 request for production of relevant, non-privileged material•  Material produced to user or attorney for review before production April 11-13, 2011
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  29. 29. Downloading An Account•  Facebook will prepare download and send a link via e-mail to the user•  All elements of the site – wall, photos, etc. will download as a zip file•  User s counsel will screen for relevant, non-privileged info prior to production April 11-13, 2011
  30. 30. Danger Of Spoliation •  Attorneys routinely advising deletions (prior to litigation holds) •  Client often deletes after litigation holds •  Preservation of evidence letters critical •  If spoliation suspected, computer forensics may be needed April 11-13, 2011
  31. 31. Preserving Social Media Evidence•  Generally less than perfect options available•  Screenshot or PDF•  Someone will have to authenticate•  Can use GoToMeeting, CamStudio or other programs to record the process•  Inexpensive to use third-party expert April 11-13, 2011
  32. 32. Evidentiary Issues•  St. Clair v. Johnny s Oyster & Shrimp, Inc. –  Any evidence procured from the Internet is good for almost nothing•  Lorraine v. Markel American Insurance Co. –  Counsel must be prepared to deal with the evidentiary issues associated with admissibility April 11-13, 2011
  33. 33. Evidentiary Issues•  FRE 901•  901(b)(1). Testimony of witness with knowledge.•  901(b)(3). Comparison by the trier of fact or by expert witnesses with a specimen.•  901(b)(4). Distinctive characteristics and the like.•  901(b)(7). Public records.•  901(b)(9). Evidence produced as a result of an accurate process or system. April 11-13, 2011
  34. 34. Evidentiary Issues•  FRE 902: SELF AUTHENTICATION•  Three of the rules have been used in the courts to authenticate ESI:•  902(5). Official publications.•  902(7). Self-authentication by inscriptions, signs, tags or labels.•  902(11). Authentication of regularly conducted business. April 11-13, 2011
  35. 35. Facebook Authentication •  Notarized declarations as to validity provided (an extra $100) •  But no witnesses for trial or depositions •  Will notify user of subpoena to allow time for motion to quash April 11-13, 2011
  36. 36. How Do You Authenticate?•  Smart lawyers –  Requests for admission –  Stipulations•  Many courts have common sense rule: If the other side doesn t object, it comes in April 11-13, 2011
  37. 37. Authentication •  Did you post this? •  Did you see this post? •  Context and content can authenticate •  Expert testimony •  Computer forensics if data was deleted April 11-13, 2011
  38. 38. Snitches Get Stitches: U Know Who U Are!•  Griffin v. Maryland (Ct. of App. M.D. May 27, 2010)•  Murder case - D s girlfriend appeared to threaten a witness on MySpace•  Site maintained under pseudonym•  Prosecution sought to intro to rehabilitate witness who changed testimony•  Had photo of D and girlfriend•  Page referred to D as Boozy•  Court said site could be authenticated from content and context April 11-13, 2011
  39. 39. Prosecutors EmbracingiJuror Social Media •  Cameron County TX •  Searching SM sites of prospective jurors •  Googling them •  Keeping up with the defense in jury investigations April 11-13, 2011
  40. 40. Voir Dire Trends•  Wall Street Jrnl. (Feb. 22, 2011)- Prosecution and defense lawyers probing jury pool –  Religion –  Activities –  What TV they watch –  Opinions they hold –  But much is now private –  Useful to know that someone is married and loves GLEE? April 11-13, 2011
  41. 41. Save the DateABA TECHSHOW 2012 March 29-31, 2012 Hilton Chicago April 11-13, 2011