Confronting social media at depositions and discovery njaj
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  • 1. Confronting Social Media at Depositions and Discovery Mark Zamora
  • 2. Where do you start? (Hint: It’s not with your client) Rule 1.1 Model Rules: ABA voted to amend the comment to Model Rule 1.1, governing lawyer competence. In addition to keeping abreast of changes in the law and its practice, a lawyer should keep abreast of the benefits and risks associated with relevant technology.
  • 3. Does your Contract/Letter Cover it? We strongly encourage you not to participate in social media (Facebook, Pinterest, Tumblr, Instagram, and the like) while your case is ongoing. Information found on social media websites is not private, can be discovered by the at fault party who hurt you, and if used as evidence may be potentially damaging to your interests. Understand that information shared with others in writing by email, text message or even posted anywhere online could result in a waiver of the€attorney client privilege were that information to relate in any way to the legal matter that we are handling for you. In addition, you should not delete or remove information from any social media website as that could be considered destruction of evidence.
  • 4. The Client Meeting Your checklist: What is on your client’s mobile phone?Tablet?
  • 5. Discovery and Social Media – Works both ways
  • 6. What is your plan? Two tracks: Plaintiff and Defendant Defendant: LOR : 1)Preservation Letter 2)Request for Copies 3)Request to Mirror Hard Drives Plan for the Battle in front of Judge Tailor your requests: *Don't ask for the company's 265,000 page website or 5000 employee intranet *Do ask for information you believe you will need logically – prior iterations of the company mission statement; white papers previously posted
  • 7. Attorney Misconduct 1. 2012: Cope v. Prince. Def firm an insurer hired investigator to access P’s “private” Facebook page. 2. 2012- NJ Attorney Ethics: Charges against two lawyers claimed to have directed a paralegal to friend a party in litigation. Claimed violation of contact with a represented person. NEW 209:10 Jersey LJ (Aug. 30, 2012). 3. Ohio: Prosecutor fired, Facebook chats violated Ohio’s requirement for truthfulness in the course of representation because lawyer conducted the chats using a fake profile.
  • 8. Test -Relevancy Whether or not evidence might be admissible, or reasonably calculated to lead to any evidence that might be found material, or relevant in determination of issues involved in proceeding. Resisting party must show that the information sought is of “such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.
  • 9. Defendant's Most Common Discovery a. Name and uniform resource locator (URL) address of the site; b. The specific URL address of your account profile on the site; c. Your account name and real names or pseudonyms you have used to identify yourself on the site; d. Your user ID or logon and password used to access your account on the site; e. The dates that you used the site; *****OR**** Any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from socialnetworking sites from October 2009 (the approximate date Plaintiff claims she first was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as well as communications by or from Plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.
  • 10. In Litigation Any expectation of complete privacy? You know the Answer What must be shared? This is the frontline of the battle Passwords: Must be turned over ? Yes say these cases Gallion v. Gallion 2011 Conn. Super. Ct. Sept 30, 2011 (Divorce) Gallagher v. Urbanovich, Pa. Ct. Common Pleas (PI) Defendant assailant in a civil case ordered to turn over login and password Mazzarella adv. Mt. Airy Casino Resort: 2009 PA State Court: Premises liability case. Plaintiff ordered to turn over password and lo in info.
  • 11. Gatto v. United Airlines and Allied Aviation Services., et al., No. 10-CV1090 (D.N.J. March 25, 2013) Lesson of Gatto: Don't delete or modify if at all possible. U.S. Magistrate Judge Steven Mannion ruled that the deletion of data in Gatto’s Facebook account constituted “spoliation of evidence,” defined as the negligent or intentional destruction, alteration, or withholding of evidence relevant to a legal proceeding. This resulted in an adverse inference against Gatto – the inference that when a party destroys evidence relevant to a legal case, they did so because that evidence was unfavorable to them.
  • 12. Limiting Access- Cases Tompkins v. Detroit Metro. Airport, No. 10-10413, 2012 WL 179320, at *2 (E.D. Mich. Jan. 18, 2012) (denying access to the plaintiff’s entire Facebook account because the defendant had failed to show that all information was relevant); Mailhoit v. Home Depot CA, No. CV 11-03892 DOC (SSx), 2012 U.S. Dist. LEXIS 131095 (C.D. Cal. Sept. 7, 2012) Judge Segal reviewed a comprehensive request for social media discovery. The Court concluded that the requests failed to comply with the Federal Rules of Civil Procedure. Segal specifically noted that “several courts have found that even though certain [social media] content may be available for public view, the Federal Rules do not grant a requesting party ‘a generalized right to rummage at will through information that [the responding party] has limited from public view’ but instead require ‘a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.’”
  • 13. Limiting Access Chauvin v. State Farm Mutual:2011 U.S. Dist. LEXIS 121600 (Oct. 20, 2011) Defendant failed to meet the initial threshold of showing that the requested information was reasonably calculated to lead to the discovery of admissible evidence as the public portions of the plaintiff’s Facebook account contained no evidence that she was engaging in activities inconsistent with her injury claim. Caraballo v. City of New York, http://www.courts.state.ny.us/Reporter/pdfs/2011/2011_30605.pdf Defendant sought “current and historical Facebook and Twitter pages and accounts, including all deleted pages and related information” In the opinion of this Court, digital “fishing expeditions” are no less objectionable than their analog antecedents Richards v. Hertz Corp. http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2012/D34155.pdf Due to the likely presence in McCarthy's Facebook profile of material of a private nature that is not relevant to this action, the Court should conduct an in camera inspection of all status reports, emails, photographs, and videos posted on McCarthy's Facebook profile.