Social Media for Litigators

Social Media for Litigators Ernie Svenson Speaker: DigitalWorkﬂowCLE.com & Antigone Peyton Founder & CEO, Cloudigy Law PLLCABATechShow 2012

Who are we?

Ernie Svenson BigLaw - 20 yrs Solo Practice - 5 yrs How to create a paperlessDigital Signatures are easy law practice easily ErnieTheAttorney.netto make PDFforLawyers.com DigitalWorkflowCLE.com Twitter @ErnieAttorney

Antigone Peyton Biglaw - 10 years Founded IP & tech boutique All things incl. technology & social media Cloudigylaw.com Blogger @ TechCocktail.com @AntigonePeyton

Road MapWhy is social media growing?What effect is it having?Why should attorneys learn?What effect on legal system?What tools & services are helpful?

Social media isHOT

-845 million users now-By end of 2012, 1 billion(1/7th of worldpopulation)

Twitter-50% “listeners”-over 20 languages-mainly used by older Twitteradults-largest social network inJapan

The more you know,the more dangerous you are (information is power)

-150 million members60% non-US-2 million + CompanyPages-82 of 100 Fortune 100companies use hiringsolutions

Demonstrating Your Expertise

OurnewlegalSystem

Clients

Virginia isfor lovers ...

Facebook ApologiesFirst Amendment Violation? Facebook vent gone awry

@phonedog_noah 17,000 followers x £1.60/follower/month Twitter Troubles

Facebook/Social Media Access for Executor? Nebraska state bill grants access to a deceased person’s account to the executor

Bad Behavior U.S. v. Cassidy, No. 8:11-cr-0091 (D. Md. 2011)-Federal cyberstalking statute-Posting messages on Twitter &blogs“Because this case involves FirstAmendment issues, terms that werein use by citizens when the Bill ofRights was drafted may help inunderstanding the legal context ofBlogs and Twitter.”

Jurors

facebook jurors

Search jury dutyWhat’s happening? Off to jury Duty yall wanna make me be on the jury? everybody goin to jail...GUILTY! Jury Duty and my iPod got some of the best sleep just died...HELP! in my life in jury duty...

probably should not be doing this.”#legaltweets #donotarrestmeMy fave part of juror selection was Home Proﬁle Find People Settings Help Sign outWhat’s people slowly remembered thingswhen happening?that might make them biased: “Uh, I Joe VentiLatte Name Joe VentiLattewas shot once.” #legaltweets Location Brooklyn, NYThe jury orientation video is unreal. Bio I edit books, butStarts off with hooded Europeans in a I also do otherforest: “In olden times, there was no things as well, ifjustice....” you can believe that. 85 188 6 following followers listed

Jurors on the Hot SeatTexas man sentenced to 2 daysof community service"friended" a plaintiff in a car-wreck case Source:WSJ article 03/06/12

Jurors on the Hot SeatFL juror held in contempt of court& sentenced to 3 days in jailUsed Facebook to "friend"defendant in a personal-injurycase Source:WSJ article 03/06/12

Jurors on the Hot SeatJuror in a gang-beating caseMay have to divulge Facebook recordsto defense attorneys seeking tooverturn their clients’ 2010 convictions Source:WSJ article 03/06/12

Jurors on the Hot SeatArkansas juror continued tweetingeven after trial judge questioned andadmonished himOn the day the jury returned deathsentence the juror tweeted at least 2X,disclosed the verdict early Source: WSJ article 03/06/12

Actions by 30 Federal JudgesRemoved from jury 9 Cautioned only 8 Mistrial Contempt Fined Other 7 Source: Federal Judicial Center

Judges: are jurors violating SM ban? 79% “No way to know” Source: Federal Judicial Center

Defense TacticsAsk Court to require jurors to discloseTwitter handles?Try to enforce search and sharinglimitations to avoid a mistrial, throwingout a conviction or an acquittal, orrepeated trial Source:WSJ article 03/06/12

Judges

facebook for judges?

facebook question “ the ﬂa. sup. ct. has forbidden judges from having lawyer friends on fb. reasoning it implies a special relationship. doing a talk wed. nt. on topic. any thoughts?”

John: How can judges not be friends with lawyers? Once a lawyer, always a lawyer.Christine: What about state bar associations? That also implies friendships & fraternization. Docia: How can they dictate who your friends will be (or not)? Ron: The scrutiny of non Judicial conduct can be problematic. Is a Judge now required to recuse himself because a litigant is a FB "friend". What if the Judge does not personally know all of his FB "friends"?

FLORIDA SUPREME COURT Judicial Ethics Advisory Committee Opinion No. 2009-20Whether a judge may add lawyers who may appear before the judge as“friends” on a social networking site, and permit such lawyers to addthe judge as their “friend.”Answer : No. Date: November 17, 2009

OHIO SUPREME COURT Judicial Ethics Advisory Committee Opinion No. 2010-07Whether a judge may add lawyers who may appear before the judge as“friends” on a social networking site, and permit such lawyers to addthe judge as their “friend.”Answer : Yes, provided.... Date: December 3, 2010

Privacy

Social Networking & Geo Location http://blogs.wsj.com/wtk-mobile/ -- Article about apps transmitting PII and location data

Harvesting & Listening Tools

Practical Help

Facebook_Subpoena—Will provide basic subscriber information, if validsubpoena from California state ct, or Fed Ct.—Will not provide user content, citing SCA—Don’t expect to talk to anyone at Facebook by phone—Their subpoena requests are handled by outside counsel

It’s a Cottage Industry . . .• Over 50% of employers research applicants’ social media/Internet footprint• Monster.com• comScore• Pew Research Center• Data mining/data hiding/reputation management

Advice

Food for Thought• How can you search & identify relevant information?• Is it possible to forensically collect?• Should you monitor?• What about your adversaries social media content?• What does “delete” really mean?• Can policies be your stopgap?

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Social Media for Litigators

by Antigone Peyton

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Social Media for Litigators Presentation Transcript