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THE ETHICAL IMPLICATIONS
OF SOCIAL MEDIA
Brian C. Focht
Stiles Byrum & Horne, LLP
www.thecyberadvocate.com
THE ETHICS OF SOCIAL MEDIA
PART 4:
SOCIAL MEDIA IN
DISCOVERY
SOCIAL MEDIA & THE COMPETENT ATTORNEY
NC RULES OF PROFESSIONAL CONDUCT
Important Provisions
1.1 – Competence
1.6 – Confide...
SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Requesting Social Media in discovery
Applicable Rule(s): 1.1, 3.4, 4.2, 5...
SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Requesting Social Media in discovery
Applicable Rule(s): 1.1, 3.4, 4.2, 5...
SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Requesting Social Media in discovery
Applicable Rule(s): 1.1, 3.4, 4.2, 5...
SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Requesting Social Media in discovery
Applicable Rule(s): 1.1, 3.4, 4.2, 5...
SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERY
Recent Decisions
Salvato v. Miley, No. 5:12-c...
SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERY
Recent Decisions
Moore v. Miller, No. 1:10-cv...
SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERY
Recent Decisions
Giacchettov.Patchogue-Medfor...
SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERY
Recent Decisions
Howellv.BuckeyeRanch,Inc.,No...
SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERY
Laws to Know
Stored Wire and Electronic Commu...
SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Responding to discovery requests for SM
Applicable Rule(s): 1.1, 3.3, 3.4...
SOCIAL MEDIA & THE COMPETENT ATTORNEY
BEST PRACTICES:
1. Remember: THE RULES STILL APPLY
2. Learn about Social Media, and ...
THE ETHICAL IMPLICATIONS
OF SOCIAL MEDIA
Brian C. Focht
Stiles, Byrum & Horne, LLP
bfocht@sbhlaw.net
www.thecyberadvocate....
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Ethics of Social Media Part 4: Social Media in Discovery

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Searching social media for relevant material can be a crucial element of your discovery process. From photos to witness statements, from video to admissible information concerning damages, a person's social media accounts can be a treasure trove of evidence. However, getting the most out of social media in discovery requires a deft touch. Part 4 of my presentation, The Ethics of Social Media, will give you a better understanding of how to approach social media in discovery.

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Ethics of Social Media Part 4: Social Media in Discovery

  1. 1. THE ETHICAL IMPLICATIONS OF SOCIAL MEDIA Brian C. Focht Stiles Byrum & Horne, LLP www.thecyberadvocate.com
  2. 2. THE ETHICS OF SOCIAL MEDIA PART 4: SOCIAL MEDIA IN DISCOVERY
  3. 3. SOCIAL MEDIA & THE COMPETENT ATTORNEY NC RULES OF PROFESSIONAL CONDUCT Important Provisions 1.1 – Competence 1.6 – Confidentiality 3.3 – Candor Toward the Tribunal 3.4 – Fairness to Opposing Party and Counsel 3.5 – Impartiality and Decorum of the Tribunal 4.2 – Communication with Persons Represented by Counsel 8.2 – Judicial and Legal Officials
  4. 4. SOCIAL MEDIA & THE COMPETENT ATTORNEY Situation: Requesting Social Media in discovery Applicable Rule(s): 1.1, 3.4, 4.2, 5.1, 5.3 To Comply: Know when you should request Social Media in discovery; refrain from fishing expeditions Understand when it’s necessary for your case Narrowly tailor your requests Know the limits of ethical research
  5. 5. SOCIAL MEDIA & THE COMPETENT ATTORNEY Situation: Requesting Social Media in discovery Applicable Rule(s): 1.1, 3.4, 4.2, 5.1, 5.3 To Comply: Know when you should request Social Media in discovery; refrain from fishing expeditions Tips: 1. Don’t accidentally limit your request by listing specific social media sites 2. Picture-based SM such as Flickr, Picasa and Instagram can be treasure troves
  6. 6. SOCIAL MEDIA & THE COMPETENT ATTORNEY Situation: Requesting Social Media in discovery Applicable Rule(s): 1.1, 3.4, 4.2, 5.1, 5.3 To Comply: Know when you should request Social Media in discovery; refrain from fishing expeditions Tips: REMEMBER: Just because you CAN request it doesn’t mean you SHOULD
  7. 7. SOCIAL MEDIA & THE COMPETENT ATTORNEY Situation: Requesting Social Media in discovery Applicable Rule(s): 1.1, 3.4, 4.2, 5.1, 5.3 To Comply: Know when you should request Social Media in discovery; refrain from fishing expeditions Example Request: “[A]ny notes, diaries, logs, journals, letters, electronic mail, text messages, calendars, Facebook postings, tweets, or other social media messages that relate or refer to your employment with the GDRTA, your alleged serious health condition, or your activities on days when you requested FMLA leave.” Wilkinson v. Greater Dayton Reg’l Transit Auth., 2014 U.S. Dist. LEXIS 64522, 9 (S.D. Ohio May 9, 2014).
  8. 8. SOCIAL MEDIA & THE COMPETENT ATTORNEY RELEVANCE OF SOCIAL MEDIA IN DISCOVERY Recent Decisions Salvato v. Miley, No. 5:12-cv-635 (M.D. Fla. June 6, 2013) - In action against sheriffs’ deputies, requesting defendant’s entire Social Media history was unnecessary fishing expedition
  9. 9. SOCIAL MEDIA & THE COMPETENT ATTORNEY RELEVANCE OF SOCIAL MEDIA IN DISCOVERY Recent Decisions Moore v. Miller, No. 1:10-cv-651 (D. Colo. June 6, 2013) - In personal injury action, plaintiff’s entire Facebook account history was discoverable
  10. 10. SOCIAL MEDIA & THE COMPETENT ATTORNEY RELEVANCE OF SOCIAL MEDIA IN DISCOVERY Recent Decisions Giacchettov.Patchogue-MedfordUnionFreeSch.Dist.,No.CV11-6323 (E.D.N.Y.May6,2013) - Discovery requests for all Social Media too much, but relevant posts discoverable - If so requested, it is the responsibility of the responding party’s attorney to review the client’s social media for relevant material, NOT the client themselves.
  11. 11. SOCIAL MEDIA & THE COMPETENT ATTORNEY RELEVANCE OF SOCIAL MEDIA IN DISCOVERY Recent Decisions Howellv.BuckeyeRanch,Inc.,No.11-cv-1014(S.D.OhioOct.2012) - Discovery of Social Media subject to “traditional relevance analysis”
  12. 12. SOCIAL MEDIA & THE COMPETENT ATTORNEY RELEVANCE OF SOCIAL MEDIA IN DISCOVERY Laws to Know Stored Wire and Electronic Communications Privacy Act - Social Media companies will frequently object to subpoenas for production of records of customers’ social media accounts based on the provisions of this statute.
  13. 13. SOCIAL MEDIA & THE COMPETENT ATTORNEY Situation: Responding to discovery requests for SM Applicable Rule(s): 1.1, 3.3, 3.4 To Comply: Produce relevant evidence; defend clients from overbroad requests, fishing expeditions. Same ethical obligations as any other discovery response N.C.StateBarv.Graves,50N.C.App.450,274S.E.2d396(1981) - Intentionally encouraging concealment of material facts relevant to the matter is prejudicial to administration of justice.
  14. 14. SOCIAL MEDIA & THE COMPETENT ATTORNEY BEST PRACTICES: 1. Remember: THE RULES STILL APPLY 2. Learn about Social Media, and how to use it – it’s the best way to know what you can find in a party’s social media 3. Always do your due diligence.
  15. 15. THE ETHICAL IMPLICATIONS OF SOCIAL MEDIA Brian C. Focht Stiles, Byrum & Horne, LLP bfocht@sbhlaw.net www.thecyberadvocate.com

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