SOCIAL NETWORKINGAND E-DISCOVERY Mary Ellen King email@example.com www.kinglitigationgroup.com 512.322.5730
“Social networking is in its infancy and I’m guessing it will become aswidespread as email,” According toGoogle’s former managing director for South Asia, Richard Kimber
SO WHAT DOES THAT MEAN FOR US, AND WHAT SHOULD WE BE THINKING ABOUT? The evolution of email is extraordinary. At the advent of email, it was seen as impersonal and taboo Today, most clients are using email Most courts are 100% electronic as well In the litigation, email is one of the main forms of communication, as snail mail communication as gone the way of the horse and buggy Today, social networking is still seen by many as taboo and impersonal, but what if it becomes as widespread as email????
CONSIDERATIONS Facebook, MySpace, Twitter – Is there a place for internet chat rooms and social networking pages in the legal industry? What are the risks? Are notifications to company hosted chat rooms and social networking pages official notice of claims/DTPA demands/etc.? Discovery implications
THE STATS – HOW COMPANIES AREDOING BUSINESS TODAY 65% of Fortune Global 100 companies have active Twitter Accounts 54% have Facebook fan pages 1/3 of these companies have blogs
FACEBOOK STATSMore than 750 million active users over 150 million in US (1/2 of our population)50% of our active users log on to Facebookin any given dayAverage user has 130 friendsPeople spend over 700 billion minutes per month on FacebookThere are over 900 million objects that people interact with (pages,groups, events and community pages)Average user is connected to 80 community pages, groups andeventsAverage user creates 90 pieces of content each monthMore than 30 billion pieces of content (web links, news stories,blog posts, notes, photo albums, etc.) shared each month.
MYSPACE STATS300 million accounts110 million monthly active usersIn the UK it is as common to have a MySpace page as it is a dog14 Billion comments on the site20 Billion mails on the site total50 Million mails per day (more than Yahoo, Hotmail,or Google)10 Billion friend relationships1.5 Billion images8 Million images being uploaded per day60,000 new videos being upload to MySpaceTV each dayMore than 8 million artists and bands on MySpace Music
TWITTER STATS In a given week, users send a billion Tweets. Users are now sending 140 million Tweets, on average, per day The all-time high in terms of Tweets sent per day was 177 million sent on March 11, 2011. In terms of Tweets per second, the all time high was 6,939 Tweets per second after midnight in Japan on New Year’s Day. Twitter says that 572,000 accounts were created on March 12, 2011, with 460,000 new accounts per day over the last month on average. Mobile users are up 182 percent over the past year. And Twitter currently has 400 employees, up from 8 in January 2008.
THE STATS CONT’D73% of American teens use social networking websites47% of adults use them (up from 37% in Nov ‘08)19% of internet users use Twitter, Facebook, or other service
BLOG STATS Every 1.5 seconds, someone creates a new blog
WHAT DOES ALL OF THIS MEAN? Social media activity is an extension of “electronically stored information” (ESI) Discovery rules apply For lawyers and paralegals, information contained in social media can be a gold mine!
WHAT DO THE RULES SAY? Preserve “relevant” or “potentially relevant” information is pending or reasonably anticipated as long as it is in your custody or control Trigger notice before complaint is filed, and make sure you include “any and all social media” in the notice.
WHAT HAPPENS IF YOU CAN PROVEENTRIES WERE DELETED? Micron Tech v. Rambus, 255 F.R.D. 135 (D. Del. 2009) Company was preparing litigation strategy They adopted document retention policy around same time and started deleting docs Judge said inappropriate, because they should have known the docs would have been relevant to the suit at some point in the future Result: Patents were not enforceable
WHAT HAPPENS IF YOU CAN PROVEENTRIES WERE DELETED? Recent study – 401 cases before 2010 where sanctions sought Sanctions in over ½ of the cases Some of the sanctions were very severe $5 mil in sanctions in 5 cases $1 mil in sanctions in 4 others Dismissals Adverse jury instructions
HOW DO WE GET THE INFORMATION? Most large corporations hire third parties to store their social media content. e.g. Citigroup hired CoTweet. Make sure retention letter is broad enough to cover third-party Get the third-party’s name in interrogatories or deposition If you don’t get docs from party in suit, subpoena third party
REALITY CHECK Most companies are not prepared to capture social media Once you know litigation is imminent, start saving information Depending on content of social media, this may be difficult
WITNESSES/PARTIES Attorneys and paralegals should advise clients and witnesses not to post updates regarding ongoing litigation They may “think” it is private, but it is not Always have them think before posting “If a juror saw this, what would they say?”
LITIGATION AND DISCOVERYIMPLICATIONS Use social networking sites to your advantage in litigation Excellent tool for gathering information on the witnesses, clients, parties, etc. Make sure you are complying with privacy laws Ensure that your access is in compliance with the social networking sites privacy statement Be ready to explain how you got access to the account Excellent tool for informing the public about your company – don’t post case specific information
DISCOVERY IMPLICATIONSOther issues to consider: May make discovery of corporate processes and products much easier Think about what you are putting out there carefully Implement policies to insure employees to not make inappropriate postings disclosing corporate structure, governance, other proprietary information, and/or trade secrets. Don’t violate attorney client communication privilege or work product doctrine Again, think carefully about what you put out there Be sure your firm’s advertising on any social media site complies with all statutory and regulatory guidelines
LITIGATION AND DISCOVERYIMPLICATIONSUse the social networking site to learn more about witnesses to the claim or witnesses in litigation
ZIMMERMAN V. WEIS MARKETS, INC. CV-09-1535, 2011 WL 2065410, *1 (PA. COM. PL. MAY 19, 2011) trial court ordered a former forklift operator to make available his social media information from his MySpace and Facebook accounts to his former employer. All logins and passwords were required to be given to defense counsel. Plaintiff was claiming serious and permanent health problems and diminution in enjoying lifes pleasures, his employer found public postings about Zimmerman enjoying motorcycle riding and bike stunts. Court concluded the employers right to discover relevant information about Zimmerman on the non-public portions of his Facebook and MySpace pages outweighed any of Zimmermans alleged privacy interests. It stated: "Zimmerman placed hisphysical condition in issue, and Weis Markets is entitled to discovery thereon.“ “Regardless of privacy settings,”….Facebook and MySpace do not guarantee complete privacy.”
MCMILLEN V. HUMMINGBIRD SPEEDWAY, INC., NO. 113-2010 CD, 2010 PA. D.&C., LEXIS 270 (PA. COM. PL. SEPTEMBER 9, 2010) The 2010 McMillen decision, the seminal Pennsylvania case, addressed three key principals: First, under Pennsylvania law, there is no privilege for information posted in the non-public sections of social websites. Second, the postings on social media sites, such as Facebook and MySpace, cannot be considered confidential because: (a) their purpose is to disseminate information in an open, public way that is easily shared with and by others and (b) their use terms make clear that information shared on the sites is not private and may be disclosed. Third, liberal discovery is generally allowable, and the pursuit of the truth related to the alleged claims is paramount to discovery. McMillen court ordered McMillen to provide the name of his social network computer site(s), his user name(s), his login name(s), and his password(s).
GAINING ACCESS Google or Yahoo search It’s free, so just create your own account Privacy Settings
DISCOVERY TIPS Google, Yahoo, or Bing search for public information posted by the other party or a key witness. Set up a Google alert when new internet postings appear that include specific keywords Consider commercial sites like publicdata.com
DISCOVERY TIPS Courts don’t allow fishing expeditions, so: Customize/tailor discovery requests for online postings, status updates, blog entries, photos, or videos to fit the facts of each case. Customize/tailor deposition questions about online activity, changing privacy settings, and deleting online material Facebook has a feature that allows you to download your information to a zip file.
DISCOVERY TIPS Linkedin and Plaxo Less sexy information, but can contain useful information Great places to learn more about opposing experts or potential damaging facts about your own
DISCOVERY TIPS Employment Cases Look for their work history and experience Can use plaintiff’s misrepresentations and omissions to attack the plaintiff’s credibility On the flip side, you can use peer recommendations to bolster plaintiff’s arguments
EMPLOYMENT LAWCONSIDERATIONS Generally, an at-will employee can be fired for their post on a social networking site or blog Need to check others laws carefully Breach of privacy to view the blog Are there any laws or personnel policies protecting off- duty employees If employer disciplines, need to do so consistently Can’t treat females and males differently
EMPLOYMENT LAW CONT’D If an employer searches for a candidate on a social networking site, anti-discrimination laws apply Can’t make a decision based on the applicant’s race, gender, age, or disability
CONSIDER ETHICS Likely should not friend someone or direct someone else to in order to obtain information Arguably using deceit or misrepresentation and may violate a lawyer’s ethics
ETHICS CONSIDERATIONSMake sure you aren’t posing as someone else (Texas HB 2003 makes it a crime (third-degree felony) to use the name or persona of another person to create a Web page or to post messages on a commercial social networking site without obtaining the other persons consent and with the intent to harm, defraud, intimidate or threaten anyone. Went into effect on 9.1.09.) Excellent tool when someone is posting negative comments.
ETHICS CONSIDERATIONS Texas Rules of Professional Conduct require that we are truthful in our statements to others
LITIGATION AND DISCOVERYIMPLICATIONS Be cautious of your content, because you don’t want to have a social networking site be the gateway to your client’s confidential and privileged documents
DISCOVERY LIMITATIONSSubpoenaing Facebook Information/Docs They will put up a fight Federal Electronics Communication Privacy Act (18 U.S.C. Section 2701) prohibits the company from handing over any info about its 350 million users without a subpoena, unless the user gives consent In 2009, FB fought off the State of Virginia who was trying to obtain information to settle a work comp claim
DISCOVERY LIMIT’S CONT’D Terms of service policies that govern how long they keep the communications. Ex: AOL – emails deleted in approx. 2 days MySpace – will not respond to a subpoena unless it is from a law enforcement agency Notifications from Facebook to an email account are probably not protected and are discoverable
GETTING CONSENT If you can get consent, you are golden. There are several websites that collect tweet stats, for example:
USE AT TRIALFederal Rules amended Notice to Preserve as soon as suit filedTexas Rules Rule 196.4 of the Texas Rules of Civil Procedure addresses the production of electronic or magnetic data. In Re Rodney Reed, 2009 WL 97260 Munoz v. State, 2009 WL 695462 (Tex. App. — Corpus Christi 2009) Williford v. State, 127 S.W.3d 309 (Tex. App. – Eastland 2004)
AUTHENTICATION AND ADMISSIBILITY U.S. v. Sidiqui, 235 F.3d 1318 (11th Cir. 2000). Emails were entered into evidence over hearsay and improper authenitication objections United States v. Brand 2005 WL 77055 (S.D.N.Y. January 12, 2005). AOL Chat transcript admitted, because it was similar to the charged conduct
AUTHENTICATION AND ADMISSIBILITY Hammontree v. State, 2007 WL 547763 (Ga.Ct.App. 2007) Where victim confirmed she was an actual participant in the IM conversation and confirmed its content, transcript properly authenticated. U.S. v. Burt, 495 F.3d 733 (7th Cir. 2007). Logs of Yahoo chat were admissible when properly authenticated
AUTHENTICATION AND ADMISSIBILITY Lorraine v. Market American Insurance Company, 241 F.R.D. 534 (D.Md. 2007) Comprehensive discussion of how to properly authenticate digital evidence such as digital photos, email, and text messages. People v. Hawkins 98 Cal. App. 4th 1428 (June 2002) Discusses California Evidence Code Section 1552 Not whether made in regular course of business, but whether the computer was operating property at the time of the printout.
AUTHENTICATION AND ADMISSIBILITY People v. Von Gunten, 2002 WL 501612 (Cal.App. 3d Dist. 2002) When screen name used, must be direct proof connecting victim’s companion to the screen name on the e-mail messages EEOC v. E.I. dupont de Nemours & Co., 2004 WL 2347559 Printout from Census Bureau web site containing domain address and date was admissible
AUTHENTICATION AND ADMISSIBILITY Telewizja Polska USA, Inc. v. Echostar Satellite Corp. (2004 WL 2367740 (N.D. Ill. 2004) [not reported] Archived versions of web site content, stored and available at a third party web site, were admissible
At the end of the day social networking can be a gold mine or a smoking gun for lawyers, paralegals, jurors, witnesses, judges, and private investigators. Just like anything else you do, you need to make smart, informed decisions when participating in and/or using the social networking world.