Social Lawyers (slide deck to accompany hypotheticals)Nicole Hyland
This is an alternative version of my Social Lawyers slide deck. It is formatted to accompany a series of social media and legal ethics hypotheticals, which can be found here: http://www.jdsupra.com/legalnews/hypotheticals-legal-ethics-and-social-57583/
Social Media Content and Discovery Practice Kevin O'Shea
Social Media Content and Discovery Practice: Entitlement, Scope, Technical Issues in Production, Ethics, and Authentication. (Edited Materials. Not offered for CLE credit).
Subtitle: "The Growing Problem of Sexting Among School-Age Children." A presentation delivered to the Catawba County School District on July 28, 2010, in Conover, NC.
Social Lawyers (slide deck to accompany hypotheticals)Nicole Hyland
This is an alternative version of my Social Lawyers slide deck. It is formatted to accompany a series of social media and legal ethics hypotheticals, which can be found here: http://www.jdsupra.com/legalnews/hypotheticals-legal-ethics-and-social-57583/
Social Media Content and Discovery Practice Kevin O'Shea
Social Media Content and Discovery Practice: Entitlement, Scope, Technical Issues in Production, Ethics, and Authentication. (Edited Materials. Not offered for CLE credit).
Subtitle: "The Growing Problem of Sexting Among School-Age Children." A presentation delivered to the Catawba County School District on July 28, 2010, in Conover, NC.
Crj 101 as we enter the last week of the course/tutorialoutletLockley
FOR MORE CLASSES VISIT
tutorialoutletdotcom
As we enter the last week of the course and we look back upon the many different forms of
white collar crime, we know that many types of white collar crime are committed through the
use of pen, paper, computers, etc. instead of guns and knives. Many white collar crimes
involve financial gain, but is the use of a computer to engage in cybersex with children a white
Virtual Assets in Probate
Estates lawyers need to learn the new issues surrounding digital assets and online communications. Are you documenting virtual assets? What are the wishes of the deceased on the disposal of online profiles? Have you preserved access to crucial internet communications and document storage? Estate law now goes beyond tangible property and must include virtual assets. Is your law firm prepared?
In this one-hour, CLE-eligible, webinar join Joshua Lenon, Clio’s lawyer in residence, and Rich Martin from Directives Online as they review what steps elder and estates lawyers need to take to document and preserve crucial online information when building a probate-focused law firm. Topics will include:
- Classifying digital assets
- Accessing online documents and communications post-mortem
- Comparing wills to trusts for online assets disposition
- Tools to manage decedents’ digital assets
Confessions of a “Recovering” Data Broker: Responsible Innovation in the Age ...Jim Adler
It's been said that the human brain is comprised of 300 million pattern matchers fed with data from our five primary senses and memories. In this age of distributed computing and cheap storage in the cloud, "thinking" without a biological brain is possible for the first time in history. The sensory input into this new, extracorporeal brain is big data.
Global data supply chains carry exabytes of government, corporate, and social data powering breakthrough uses in medicine, transportation, communications, and energy. However, equally fantastic is the specter of abuses by powerful players to exploit private information, subtly discriminate, or mistakenly prosecute the innocent.
This talk discusses the current state of these data supply chains, where they are headed, and the societal implications for privacy, security, and liberty. And it calls technologists, business leaders, and humanists -- i.e., geeks, suits, and wonks -- to together resolve the tension between cultural values and fast-paced technology.
This presentation offers an overview of the legislative and legal landscape of cyber bullying and sexting. It is meant for attorneys involved in these kinds of cases.
"Touching, Traces: 2020 Election Diaries"
By Tamiko Thiel, 2020/2021
Giclée prints 21x29cm printed on 30cm x 38cm Hahnemühle paper.
In the coronavirus crisis we are now hyperaware of the surfaces we touch, and of the traces that may or may not be on those surfaces. Indeed, for those alone in self-isolation, our mobile devices are now the surfaces we touch and stroke most intimately and most often.
These are prints from my 2020 Election Diaries, records of my frantic "doomscrolling" on news sites and Facebook on key days of the 2020 election. Living in Europe, isolated from the events in the USA by time and distance, trying to make to make sense of the weird events and the weeks of uncertainty and suspense, and seeking solace in my online community of friends and media analysts.
2012: NJ GMIS: The Double Edge Sword of the Social NetworkCarol Spencer
Social networks are, for the most part, free and easy to use. Their use has proliferated and is necessary for governments to communicate with constituents. But, with that use comes the need for policies and policing of the use of social media.
Balancing the right of a cotenant to develop his oil and gas rights and the rights of an unwilling or unlocatable cotenant has become an increasing challenge for industry and landowners alike. This PowerPoint was presented at the PBI Sixth Annual Oil and Gas Law Colloquium in a program examining current Pennsylvania law relating to unleased, undivided fractional interests.
Crj 101 as we enter the last week of the course/tutorialoutletLockley
FOR MORE CLASSES VISIT
tutorialoutletdotcom
As we enter the last week of the course and we look back upon the many different forms of
white collar crime, we know that many types of white collar crime are committed through the
use of pen, paper, computers, etc. instead of guns and knives. Many white collar crimes
involve financial gain, but is the use of a computer to engage in cybersex with children a white
Virtual Assets in Probate
Estates lawyers need to learn the new issues surrounding digital assets and online communications. Are you documenting virtual assets? What are the wishes of the deceased on the disposal of online profiles? Have you preserved access to crucial internet communications and document storage? Estate law now goes beyond tangible property and must include virtual assets. Is your law firm prepared?
In this one-hour, CLE-eligible, webinar join Joshua Lenon, Clio’s lawyer in residence, and Rich Martin from Directives Online as they review what steps elder and estates lawyers need to take to document and preserve crucial online information when building a probate-focused law firm. Topics will include:
- Classifying digital assets
- Accessing online documents and communications post-mortem
- Comparing wills to trusts for online assets disposition
- Tools to manage decedents’ digital assets
Confessions of a “Recovering” Data Broker: Responsible Innovation in the Age ...Jim Adler
It's been said that the human brain is comprised of 300 million pattern matchers fed with data from our five primary senses and memories. In this age of distributed computing and cheap storage in the cloud, "thinking" without a biological brain is possible for the first time in history. The sensory input into this new, extracorporeal brain is big data.
Global data supply chains carry exabytes of government, corporate, and social data powering breakthrough uses in medicine, transportation, communications, and energy. However, equally fantastic is the specter of abuses by powerful players to exploit private information, subtly discriminate, or mistakenly prosecute the innocent.
This talk discusses the current state of these data supply chains, where they are headed, and the societal implications for privacy, security, and liberty. And it calls technologists, business leaders, and humanists -- i.e., geeks, suits, and wonks -- to together resolve the tension between cultural values and fast-paced technology.
This presentation offers an overview of the legislative and legal landscape of cyber bullying and sexting. It is meant for attorneys involved in these kinds of cases.
"Touching, Traces: 2020 Election Diaries"
By Tamiko Thiel, 2020/2021
Giclée prints 21x29cm printed on 30cm x 38cm Hahnemühle paper.
In the coronavirus crisis we are now hyperaware of the surfaces we touch, and of the traces that may or may not be on those surfaces. Indeed, for those alone in self-isolation, our mobile devices are now the surfaces we touch and stroke most intimately and most often.
These are prints from my 2020 Election Diaries, records of my frantic "doomscrolling" on news sites and Facebook on key days of the 2020 election. Living in Europe, isolated from the events in the USA by time and distance, trying to make to make sense of the weird events and the weeks of uncertainty and suspense, and seeking solace in my online community of friends and media analysts.
2012: NJ GMIS: The Double Edge Sword of the Social NetworkCarol Spencer
Social networks are, for the most part, free and easy to use. Their use has proliferated and is necessary for governments to communicate with constituents. But, with that use comes the need for policies and policing of the use of social media.
Balancing the right of a cotenant to develop his oil and gas rights and the rights of an unwilling or unlocatable cotenant has become an increasing challenge for industry and landowners alike. This PowerPoint was presented at the PBI Sixth Annual Oil and Gas Law Colloquium in a program examining current Pennsylvania law relating to unleased, undivided fractional interests.
Common Oil and Gas Title Issues and How to Address ThemLisa McManus
As part of the "Fundamentals of Oil and Gas Law" CLE presented by the Pennsylvania Bar Institute on May 13, 2015, this program was intended to assist attorneys in determining the appropriate steps in addressing oil and gas title concerns of clients.
Development of Oil and Gas in Pennsylvania Where Subsurface Owners Are Unknow...Lisa McManus
Leasing property for oil and gas development is complicated by the inability to identify or locate heirs who own record title to all or a fraction of the oil and gas. This presentation reviews the current Dormant Oil and Gas Act law in Pennsylvania, as well as pending legislation to address this thorny issue.
Validity of Unseated Tax Sales and Title WashingLisa McManus
These materials provide background regarding the law pertaining to unseated tax sales and title washing and an analysis of the Herder Spring Hunting Club v. Keller decision.
Northern Forests II v. Keta: The End of Service on Heirs and Assigns?Lisa McManus
Northern Forests II, Inc. v. Keta Realty Co. involved the striking of a default judgment in a quiet title action over 25 years after judgment was entered. Several key holdings in the opinion are cause for grave concern to the title practitioner faced with quiet title judgments in the chain of title.
There are both private and public aspects of Facebook. How does the privacy of Facebook play in to a civil law trial considering social networking platforms are extremely universal and seemingly public? A variety of cases explore the privacy of these platforms in a court of law.
An overview of the way the law profession's rules of professional responsibility/conduct apply to the use of social media platforms and tools, including advertising, searching, and use of social media information in investigation, discovery, and at trial.
Social media is slowly changing the practice of law. Join our panel of experts as they discuss everything from social media in eDiscovery to the challenges of interpreting emoji.
Attendees will learn:
--Best practices for preserving and producing social media evidence in litigation.
--How social media is working its way into the discovery process and how courts are reacting.
--Ethical pitfalls that can arise when dealing with social media.
--How emojis are changing the legal practice today and how they’ll continue to alter the profession in the future.
Balancing an employer's right to know vs. privacy; wireless devices and employee's privacy violations; monitoring and creating policies regarding internet, email, tesxting and other electronic communications; wireless devices and employee's and employer's privacy violations; off the job behavior;
A basic refresher to fundamental title concepts as they apply to oil and gas law in Pennsylvania, you will learn:
Real property estates Types of ownership
Severance
Adverse possession
Transfer by deed
Rights of the property owner
Co-tenant rights in an oil and gas lease
Working interests v. royalty interests
Herder Spring: The Final Word on Title WashingLisa McManus
An overview of unseated tax sale law in Pennsylvania and the Herder Spring Hunting Club v. Keller decision. Prepared for and presented at the Pennsylvania Bar Institute 8th Annual Oil and Gas Law Colloquium in Canonsburg, Pennsylvania on July 27, 2016.
Oil and Gas Case Law Update: Recent Decisions Impacting Oil and Gas PracticeLisa McManus
Pennsylvania oil and gas jurisprudence continues to evolve. On April 2, 2015, PBI's panel of energy law practitioners provided a webinar update on the latest appellate decisions that are shaping energy law practice. Included is an overview of Sabella v. Appalachian Dev. Corp.; Citizens for Pennsylvania’s Future v. Ultra Resources, Inc.; Sisson v. Stanley; Harrison v. Cabot Oil & Gas; Pennsylvania Environmental Defense Foundation v. Commonwealth.
1. Social Media & Litigation:
Coloring Inside the Lines
November, 2011
2. What are the Most Well-Known Social Media Sites?
• Facebook
• LinkedIn
• Myspace
• Twitter
• YouTube
• Flickr
• Yammer
• Blogs
3. “Friending” the Opposing Party
You are defending a driver in an automobile accident. The
Plaintiff is represented. During the deposition of the
Plaintiff, you learn that she has a number of photographs of the
accident posted on her Facebook account. The pictures have not
been produced in discovery and, based on the description by the
Plaintiff, you believe that they will be very helpful to your case.
Can you send a "friend" request to the opposing party to view
the pictures?
5. Why?
• Rule 4.2 Communication With Person Represented By Counsel
– In representing a client, a lawyer shall not communicate about the subject of
the representation with a person the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized to do so by law or a court order.
• NY Rules of Professional Conduct defines “Computer-accessed communication” as
including communications made by or on behalf of a lawyer or law firm through
the use of a computer or electronic devices, e.g, web sites, blogs, search
engines, email, banner ads, pop-ups, chat rooms, list servers, and IMs
• Friend requests are "communications among members." United States v.
Drew, 259 F.R.D. 449 (C.D. Cal. 2009).
6. But…. Public Information is Different
• A lawyer representing a client in pending litigation may
access the public pages of another party's social networking
website (such as Facebook or MySpace) for the purpose of
obtaining possible impeachment material for use in the
litigation. NYSBA Opinion # 843 (09/10/2010). See also Yath v.
Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. App. 2009).
• Viewing information that is accessible to the general public.
Oregon State Bar Legal Ethics Comm'n, Op. 2005-164 (August
2005).
7. “Friending” Adverse Witnesses
Scenario
You are representing the Plaintiff in a very
contentious divorce matter. You find out that the
Defendant has a “close friend” that will have some
very helping evidence for your position, including
pictures. The pictures are posted on the adverse
witness’ social media site, but under private settings.
Can you send a friend request to an adverse witness?
9. Model Rules
• Model Rule 4.1(a) forbids a lawyer from making false statements of material fact to a third person.
Accordingly, failure to identify the true purpose of a contact with a third party constitutes a "false
statement" could violate this Rule.
• Model Rule 4.4(a) prohibits attorneys from gaining evidence in a way that violates the rights of another.
• Model Rule 8.4(c) bans conduct by a lawyer that involves dishonesty, fraud, deceit, or misrepresentation.
• Model Rule 1.2 prohibits attorneys from advising their clients to engage in fraudulent behavior.
• Model Rule 3.4 specifies that attorneys shall not perpetuate fraud.
• Model Rule 8.4 bars attorneys from hiring agents to engage in unethical practices.
10. Lawyers Cannot Obtain Content Via Deception
Unethical to “Friend” a party or witness under
false pretenses in order to gain access to Facebook
page, even through a 3rd party (pretexting)
Cannot “friend” a represented party
Philadelphia Bar–cannot “friend” without
disclosing purpose and association with lawyer
NY State Bar–can view public information, even of
a party to the litigation
NY City Bar–can “friend” using true name but
without disclosure –“truthful friending” –
encourages informal discovery
San Diego County Bar–the duty of an attorney
under the State Bar Act not to deceive extends •Philadelphia Opinion 2009-2
•NY State Opinion 843 (2010)
beyond the courtroom •NY City Opinion 2010-2
•SDCBA Legal Ethics Opinion 2011-2
11. Issuing Subpoenas to Facebook
An artist brought an action against a licensee for
breach of a license agreement to use the artist’s
artwork in garments. You represent the
licensee, and you served a third-party subpoena
to Facebook for the artist’s private messages and
wall postings. The artist’s privacy settings for his
Facebook page only allows his “Friends” to have
access to his page.
If the artist moves to quash the subpoena, will he
be successful?
13. Why?
• The artist’s Facebook private messages are not subject to a subpoena duces tecum under
the Stored Communications Act, 18 U.S.C. § 2703(e), because they are not readily accessible
to the general public and therefore are inherently private. Crispin v. Christian
Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. May 26, 2010).
• SCA was enacted in 1986 as part of the larger Electronic Communications Privacy Act (ECPA).
• The SCA deals with the voluntary and compelled disclosure of “stored wire and electronic
communications and transactional records” retained by third-party internet service
providers (ISPs). It also prohibits ISPs from divulging the contents of electronic
communications carried, stored, or maintained by the service.
• Largent v. Reed, No. 2009-1823, Court of Common Pleas of the Thirty-Ninth Judicial District
of Pennsylvania – SCA does not apply to individual plaintiffs, but to enumerated entities, so
a party can be required to provide access to his or her social media accounts
In civil matters, a court cannot issue a
subpoena to social media sites for the release
of communications relating to a third-party.
So how do we get the information legally and
ethically?
14. No “Social Media” Privilege Exists
• Courts can and do issue discovery orders compelling a party of a lawsuit to
grant an opposing party access to his or her Facebook page.
McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270
Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (Northumberland Co., May 19, 2011)
Troubling privacy rights implications in criminal cases: USA v. Lakha, N.D. Ga., 1:10cr451 –
Sexual assault victim required to share Facebook materials with defense counsel and judge for
review
Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650, 2010 N.Y. Misc. LEXIS 4538, 2010
NY Slip Op 20388 (2010)
Largent v. Reed, No. 2009-1823, Court of Common Pleas of the Thirty-Ninth Judicial District of
Pennsylvania, Franklin County Branch
Offenback v. LM Bowman, Inc., 2011 U.S. Dist. LEXIS 66432, No. 1:10-CV-1789 (M.D. Pa. June
22, 2011)
EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010)
McCann v. Harleysville Ins. Co., 78 A.D.3d 1524 (N.Y.S.2d 2010)
15. No Fishing Expeditions!
• The mere existence of a social media profile does not entitle a party to gain
access to all materials on the site.
• Must provide threshold showing that publicly accessible portions of social
networking site contain information suggesting that further relevant postings
are likely to be found by access to the non-public portions)
Piccolo v. Paterson, No. 2009-04979 (Bucks Co., May 5, 2011)
Mackelprang v. Fid. Nat'l Title Agency of Nev., Inc., 2007 U.S. Dist. LEXIS
2379, 99 Fair Empl. Prac. Cas. (BNA) 997 (D. Nev. Jan. 9, 2007)
Kennedy v. Norfolk S. Corp., No. 100201437 (Pa. C.P. Phila. Jan.
15, 2011)
EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010)
Tompkins v. Detroit Metro. Airport, 2012 U.S. Dist. LEXIS 5749 ( E.D.
Mich. Jan. 18, 2012)
Davenport v. State Farm Mut. Auto. Ins. Co., 2012 U.S. Dist. LEXIS 20944
(M.D. Fla. Feb. 21, 2012)
16. Key Takeaways from Opinions on Discovery of Social Media Site Content
• Rules of Civil Procedure generally provide for liberal discovery
• Social Networking content is not shielded from discovery simply because it’s
“locked” or “private”
• No fishing expeditions
• Postings on social networking sites that are inconsistent with statements in
discovery often result in the private portions of those sites being ruled discoverable
• The proper method of obtaining discovery of social media is to serve properly
limited requests for relevant information. The producing party should err in favor of
production if there is any doubt over relevance. A refusal to produce could be
grounds for sanctions.
• Court may decline to review materials in camera if requested: 1) strain on court
resources, 2) unfair to require Court to guess at what may be germane to case.
17. Practical Implications
• How do you know (or how can you prove) it was there if party/witness does not consent to
production?
• Beware spoliation sanctions, however: Lester v. Allied Concrete Company , No. CL08-
150, Cir. Ct. Charlottesville, Va. = $522k against attorney, $180k against client
• Although Facebook “caches” users’ pages, that information won’t be available directly
because of the SCA if the user deletes the page in contemplation of litigation or after
discovery requests. No way under the current law to access deleted information UNLESS
specific order of court is obtained directing party to consent to site’s production of deleted
pages. See Romano v. Steelcase.
• If party does consent to production from Facebook, costs are significant for production:
Facebook charges “a mandatory, non-refundable processing fee” of $500 per production
request, an additional $100 fee for notarized declarations and an extra $200 fee for
expedited responses.
• And the biggest issue of all…. Authentication
18. How do we know who posted that update?
Some courts are providing instruction on how to authenticate…
Genworth Financial Wealth Management Inc. vs. McMullan, 2010 U.S. Dist. LEXIS
53145 (D. Conn. June 1, 2010) (District court outlined in detail the procedures that
the computer forensic specialist should follow)
United States v. Williams, 2010 U.S. App. LEXIS 1347 (4th Cir Jan 21, 2010)
Schreiber v Schreiber, 2010 NY Slip Op 20271 (N.Y. Sup. Ct. 2010) (Court provided
detailed instructions on the protocol for cloned hard drives.)
Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007)
Commonwealth v. Purdy, 459 Mass. 442 (Mass. 2011) (emails on shared computer
regarding prostitution ring)
BUT, others object to the potential for fraud
Griffin v. State, 2010 Md App. LEXIS 87 (Md. Ct. Spec. App. May 27, 2010) (police
officer not permitted to authenticate printout of MySpace pages in murder trial)
Look for increasing awareness of potential fraud and challenges in authentication
19. Waiver of Attorney-Client Privilege or Work
Product Doctrine Protection
The presence of a third-party during
attorney-client communications
will generally negate the privilege
McMillen v. Hummingbird
Speedway, Inc., 2010 Pa. Dist. &
Cnty. Dec. LEXIS 270
Lenz v. Universal Music Corp., 2010
U.S. Dist. LEXIS 119271 (N.D. Cal.
Oct. 22, 2010)
Kintera, Inc. v. Convio, Inc., 219 F.R.D.
503 (S.D. Cal. 2003)
Stern v. O’Quinn, 253 F.R.D. 663 (S.D.
Fla. 2008)
20. Researching Jurors
Scenario
You are preparing for trial. The week before the trial
begins you receive the list of potential jurors. Due to
the likelihood of potential bias against your
client, you want to research the potential jurors by
Googling their names and/or “Facebooking" them.
Can you Google the jurors names and/ or Facebook
them?
22. Why?
• You may even have a duty to do so as long as no contact is
made with the juror. Johnson v. McCullough, 306 S.W.3d 551
(Mo. 2010).
– Litigants should not be allowed to wait until a verdict has
been rendered to perform a Case.net search for jurors'
prior litigation history when, in many instances, the search
also could have been done in the final stages of jury
selection or after the jury was selected but prior to the
jury being empanelled. Johnson v. McCullough, 306 S.W.3d
at 558-59.
• American College of Trial Lawyers, Annotated Code of Trial
Conduct Rule 19(b) (2005).
23. But Be Careful!
• Model Rule 3.5: Impartiality And Decorum Of The Tribunal
• A lawyer shall not:
– (a) seek to influence a judge, juror, prospective juror or
other official by means prohibited by law;
– (b) communicate ex parte with such a person during the
proceeding unless authorized to do so by law or court
order;
– (d) engage in conduct intended to disrupt a tribunal.
• The Rule still applies whether you hide your identity or not.
24. Monitoring the Jurors Communications During Trial
Scenario
You are in trial on a major case. During a
break, you see one of the jurors typing on her
Blackberry in the bathroom. You know that
the juror is an active social media user
because of voir dire, and you suspect that she
is “tweeting” during trial.
Can you monitor the juror’s communications
during trial?
26. Juror Social Media Use Consequences
jurorno5 Stay tuned for a big
announcement on Monday everyone!
#verdict
about 7 hours ago via web
• Juror No. 5 blogged throughout the public corruption trial of a former PA state senator.
Philadelphia Daily News, Mar. 16, 2009. The defense moved for a mistrial but the court
denied the motion and Sen. Fumo eventually was found guilty.
• Car accident case in Tarrant County, Texas, wherein juror attempted to “friend” the
defendant. Juror was removed from jury and was held in contempt. Trial continued
without that juror.
• Mistrial results in Florida when 9 of 12 jurors admitted to doing research on the case
during the trial.
• State v. Montas, Ind. No. S-149-11: NJ juror held in contempt for internet research
leading to mistrial
• Beginning in 2012, California jurors who tweet during trial or deliberations can be
sentenced to jail time.
27. “Friending” the Judiciary
Scenario
You and your friend went to the same law school and
the two of you passed the bar at the same time. Your
friend just got appointed as a judge. You are a
litigator, and you are frequently in court. You both
have Facebook pages.
Can you and the judge be “friends” on Facebook?
29. It Depends on Where You Practice
YES NO
Kentucky, New York, and Ohio Florida
A judge may be a “friend” on a Appearance of lawyers who may
social networking site with a appear before the judge as “friends”
lawyer who appears as counsel on a judge’s social networking page
in a case before the judge. conveys the impression that these
lawyers “friends” are in a special
position to influence the judge
Judges’ Membership on Internet-Based Social
Networking Sites, Formal Judicial Ethics
Opinion JE-119 (Ky. Jan. 20, 2010) Judicial Ethics Advisory Committee Opinion No.
2009-20 (Fla. Nov. 17, 2009)
New York Ethics Opinion 08-176 (NY Jan.
29, 2009) North Carolina
Subjected a judge to disciplinary
Board of Commissioners on Grievances and
Discipline Opinion 2010-7 (Ohio Dec. 3, 2010)
proceedings for posting comments
on an attorney's Facebook "wall"
Advisory Comm. on Standards of Jud. during and regarding an active
Conduct, No. 17-2009 (S.C. Jud. Dept. Oct. 2009 lawsuit.
In re Terry, No. 09-234 (N.C. Jud. Standards
Comm'n Apr. 1, 2009).
30. Proof of Service, Facebook-Style
Scenario
You have just taken on a new case against a very elusive internet
mogul. He has no known residential address, and because of
the nature of his business, is able to avoid having a business
address. In other words, personal service is impossible and
service by traditional means of publication is unlikely.
Can you serve the defendant through Facebook or other social
media sites?
32. Depends on Where You Are….
• United States
– Mpafe v. Mpafe, Hennepin County, MN No. 27-FA-11-3453: Authorized
service of divorce proceedings on defendant, who was believed to have left
the country, by email, “Facebook, Myspace or any other social networking
site.” Order stated that while the court allowed service by publication in a
legal newspaper, it was unlikely the respondent would see it. “The traditional
way to get service by publication is antiquated and is prohibitively expensive,”
Judge Kevin Burke wrote. “Service is critical, and technology provides a
cheaper and hopefully more effective way of finding respondent.”
– Rio Props. v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002): Email service
upon foreign Internet gambling business was appropriate alternative service
– Concerns are as follows:
• Identification
• Infrequent users
33. Other Countries
Australia - MKM Capital Property Limited v Corbo and Poyser, No. SC 608 of 2008
Canada - Knott v. Sutherland (Feb. 5, 2009) Edmonton 0803 002267 (Alta.Q.B.M.)
New Zealand - Axe Market Gardens v Craig Axe CIV: 2008-485-2676
United Kingdom - Blaney v Persons Unknown (October 2009)
Allowed: Generally must demonstrate both an inability to serve the defendant
through a more traditional medium, and that service through social media offers
a reasonable chance of success.
34. Other Litigation-Related Social Media Tips
Service of Subpoenas:
• Find a picture of your witness on Facebook and send it to your process server.
• Find out who their employer is on Facebook and serve them at work.
• Monitor their wall to see if they announce their current location - Foursquare
Gathering Data
• Adverse Party: Can lead you to other fact witnesses
• Opposing Counsel: Locate information on
experience, education, recommendations, links to blogs and other social
media accounts, associations, professional distinctions and awards
• Opposing Experts: Discover possible links between counsel and expert; can be
used for cross-examination
35. Additional Resources
• Letter to Client Regarding Use of Social Media Sites:
http://www.karenkoehlerblog.com/Social%20Networking%20Site%20Letter.pdf
• COMMENT: Privacy's Role in the Discovery of Social Networking Site Information, 64 SMU L. Rev. 1433 (2011)
• ARTICLE: DON'T BE A TWIT: AVOIDING THE ETHICAL PITFALLS FACING LAWYERS UTILIZING SOCIAL MEDIA IN
THREE IMPORTANT ARENAS - DISCOVERY, COMMUNICATIONS WITH JUDGES AND JURORS, AND MARKETING, 20
Temp. Pol. & Civ. Rts. L. Rev. 297 (2011)
• Alexander "Sandy" Y. Thomas, Maureen C. Cain, Emma Lenthall, and Louise Berg, Social Media in Action in
Litigation, Evidence & Privilege, Legal Bytes - http://www.legalbytes.com/tags/waiver-of-the-workproduct-doct/
• Network Interference: A Legal Guide to the Commercial Risks and Rewards of the Social Media Phenomenon
(2nd Edition) Reed
Smith, http://www.reedsmith.com/publications/white_papers.cfm?cit_id=26419&widCall1=customWidgets.cont
ent_view_1&usecache=false
• Our Pleasure to Serve You: More Lawyers Look to Social Networking Sites to Notify Defendants - Magazine - ABA
Journal, http://www.abajournal.com/magazine/article/our_pleasure_to_serve_lawyers_social_networking_sites
_notify_defendants/
• Nadine R. Weiskopf, Tweets and Status Updates Meet the Courtroom: How Social Media Continues to be a
Challenge for E-Discovery in 2011, http://www.lexisnexis.com/eMarketing_WCS_graphics/145833/Social-Media-
and-eDiscovery-Weiskopf.pdf
• Evan B. North, Comment, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U.
Kan. L. Rev. 1279, 1308 (2010) (noting social networking websites’ effect on discovery).
• Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislature’s Guide to Amending It, 72 Geo.
Wash. L. Rev. 1208, 1212-13 (2004).
35 Law Firm Marketing Today June 1, 2012
36. Credits
This program is based in part on the following CLE:
Using Social Networking Sites as Informal Discovery Tools
American Bar Association Young Lawyers Division, February 12, 2011
Presenters:
Min Cho, Holland & Knight
Victoria Mitchell, Holland & Knight
Lisa McManus, LexisNexis
Stacie Winkler, Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C.
36 Law Firm Marketing Today June 1, 2012