2. “Social networking is in its infancy
and I’m guessing it will become as
widespread as email,” According to
Google’s former managing director
for South Asia, Richard Kimber
3. 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????
4. 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
5. THE STATS – HOW COMPANIES ARE
DOING BUSINESS TODAY
65% of Fortune Global 100 companies have active Twitter
Accounts
54% have Facebook fan pages
1/3 of these companies have blogs
6. FACEBOOK STATS
More than 750 million active users
over 150 million in US (1/2 of our population)
50% of our active users log on to Facebook
in any given day
Average user has 130 friends
People spend over 700 billion minutes per month on Facebook
There are over 900 million objects that people interact with (pages,
groups, events and community pages)
Average user is connected to 80 community pages, groups and
events
Average user creates 90 pieces of content each month
More than 30 billion pieces of content (web links, news stories,
blog posts, notes, photo albums, etc.) shared each month.
7. MYSPACE STATS
300 million accounts
110 million monthly active users
In the UK it is as common to have a MySpace page as it is a dog
14 Billion comments on the site
20 Billion mails on the site total
50 Million mails per day (more than Yahoo, Hotmail,
or Google)
10 Billion friend relationships
1.5 Billion images
8 Million images being uploaded per day
60,000 new videos being upload to MySpaceTV each day
More than 8 million artists and bands on MySpace Music
8. 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.
9. THE STATS CONT’D
73% of American teens use social networking
websites
47% of adults use them (up from 37% in Nov ‘08)
19% of internet users use Twitter, Facebook, or
other service
11. 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!
12. 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.
13. WHAT HAPPENS IF YOU CAN PROVE
ENTRIES 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
14. WHAT HAPPENS IF YOU CAN PROVE
ENTRIES 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
15. 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
16. 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
17. 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?”
18. LITIGATION AND DISCOVERY
IMPLICATIONS
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
19. DISCOVERY IMPLICATIONS
Other 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
21. 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 life's pleasures, his employer found
public postings about Zimmerman enjoying motorcycle riding and
bike stunts.
Court concluded the employer's right to discover relevant
information about Zimmerman on the non-public portions of his
Facebook and MySpace pages outweighed any of Zimmerman's
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.”
22. 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).
23. GAINING ACCESS
Google or Yahoo search
It’s free, so just create your own account
Privacy Settings
24. 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
25. 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.
26. 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
27. 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
28. EMPLOYMENT LAW
CONSIDERATIONS
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
29. 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
30. 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
31. ETHICS CONSIDERATIONS
Make 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 person's
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.
32. ETHICS CONSIDERATIONS
Texas Rules of Professional Conduct require that we are truthful
in our statements to others
33. LITIGATION AND DISCOVERY
IMPLICATIONS
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
34. DISCOVERY LIMITATIONS
Subpoenaing 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
35. 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
36. GETTING CONSENT
If you can get consent, you are golden. There are several
websites that collect tweet stats, for example:
37. USE AT TRIAL
Federal Rules amended
Notice to Preserve as soon as suit filed
Texas 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)
38. 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
39. 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
40. 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.
41. 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
42. 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
43. 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.