Social Media and Litigation
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Slides from my presentation on the use of social media in litigation.
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Social Media and Litigation
- 1. Social Media & Litigation PBA Solo and Small Firm Conference Bedford Springs, July, 2015 SARA AUSTIN AUSTIN LAW FIRM, LLC JENNIFER ELLIS LOWENTHAL & ABRAMS, PC / JENNIFER ELLIS, JD, LLC ANITA PITOCK LOWENTHAL & ABRAMS, PC
- 2. Today’s Session Impact of Social Media on Litigation Gathering Social Media Evidence Use of Social Media in Personal Injury & Medical Malpractice Litigation Use of Social Media in Employment Law and Business Litigation Ethical Issues (Throughout the Presentation)
- 3. Competence With Technology Underlying all use of technology is Rule 1.1 New comment added as a result of work by American Bar Association Adopted by Pennsylvania Lawyers must,“keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal requirements to which the lawyer is subject.”
- 4. What Does Competence With Technology Mean? Must be aware of what kind of technology is required in your practice Must be aware of risks and benefits Must manage the risks Any technology you choose to use Must be aware of risks and benefits Must manage the risks How? Educate yourself Hire competent assistance In house or out of house
- 5. 1.44 billion 157 million daily in US & Canada 21 min per day 1 billion users 4 billion views per day 6 billion hours per month 600 million 22% online adults at least once per month 300 million 53% of 18-29 60.3 million US 70 million 80% women 42% of online adult US Women550 million 50% of People Read Blogs 332 million 40% check daily 107 Million US 17 minutes monthly 97% lawyers listed 200,000 active lawyers Over 6 million questions
- 6. Why Social Media Matters
- 7. Social Media Can Destroy Cases
- 8. Publication of Confidential Information
- 9. Lawyers Get in Trouble Too
- 10. Pretending to be Someone Else
- 11. Improper Use to Influence Court
- 12. Loss of Immunity Publication of pleadings and other documents can cause the loss of immunity from defamation. Sunstar Ventures, LLC. v. Tigani Bochetto v. Gibson (lawyer faxed complaint to press)
- 13. What Advice Should You Give Your Clients?
- 14. How Can You Protect Yourself?
- 15. What Should You Do at the Start of the Case?
- 16. Accessing Data Privacy Controls Legal Issues Don’t violate computer access laws Hacking into accounts Using passwords without permission Make sure clients don’t violate the laws Hacking Keycaps and other malware programs Going beyond permissible access Ethical Issues No connecting to opposing side Must be honest if seeking to connect to witness Ok to research jurors May not connect
- 18. Privacy Controls
- 19. The Plaintiff
- 20. The Defendants
- 21. Facebook and Privacy Settings Privacy settings have a huge impact on what you can see Friends can see a lot Public can only see what owner of account allows
- 22. Famous Last Words “I thought it was private!”
- 23. What the Public Can See No Information Publicly Shared Photos
- 24. What the Public Can See Looks Like Curtis Doesn’t Post Much
- 25. What Friends Can See Details Curtis has shared Posts by Others on Curtis’ Wall Friends
- 26. What Friends Can See Check Ins to locations Interests Posts and Answers
- 27. Individual Posts and Pictures Choose Who Sees What
- 28. Back to Curtis D. Ellis v. Millie, Rami & Angelou Curtis is friends on Facebook with Rami and Jennifer Not with Millie or Angelou Curtis tags Rami and Jennifer in posts Rami and Jennifer’s friends see posts where tagged Jennifer and Rami are friends with all involved A lot of data can be accessed as a result
- 29. Legal Issues
- 30. Subpoena Sites for Data?
- 31. Subpoena Sites for Ownership
- 33. Federal Electronic Communications Privacy Act:18 USC § 2510-2522 Includes computer based communications Includes stored communications
- 34. Federal 18 USC § 2511 Interception and disclosure of wire, oral, or electronic communications prohibited Intentionally discloses, or endeavors to disclose, to any other person the contents of any…communication…
- 35. Pennsylvania Unlawful use of computer and other computer crimes. (3rd Degree Felony) - 18 § 7611 Accesses or exceeds authorization to access Provides password or other information allowing access to a third party
- 36. Spoliation
- 37. Discovery of Social Media
- 38. Tell Us About Your Practice Areas
- 40. What Happens in Court? Foundation Best Evidence Relevance Authentication Use
- 41. Social Media & Litigation PBA Solo and Small Firm Conference Bedford Springs, July, 2015 SARA AUSTIN AUSTIN LAW FIRM, LLC JENNIFER ELLIS LOWENTHAL & ABRAMS, PC / JENNIFER ELLIS, JD, LLC ANITA PITOCK LOWENTHAL & ABRAMS, PC
Editor's Notes
- Mention other areas impacted, family, immigration, criminal, etc.
- http://expandedramblings.com/index.php/resource-how-many-people-use-the-top-social-media/Jeff Bullas, 22 Social Media Facts and Statistics You Should Know in 2014 (2014.) http://www.jeffbullas.com/2014/01/17/20-social-media-facts-and-statistics-you-should-know-in-2014/
- Clients post on social media Harmful content Content different from what they tell you and the court Friends post harmful content Opposing counsel looks at social media It can be an ethical violation to fail to review social media accounts
- Facebook Numerous people claim serious injuries and show contradictory information on Facebook Decreases settlement strength and value of case. Sometimes results in lost cases. Twitter Client posted pictures and discussed how she was enjoying life and becoming used to a scar Low verdict Blog & MySpace Woman posted about belly dancing despite claiming a serious injury Angry judge, loss of substantial alimony
- Provide a separate document reminding clients about social media risks and warning not to delete content without preserving it first (ask to preserve it yourself) Have the client sign the letter Provide instructions on privacy settings
- Review client’s & witnesses social media accounts immediately Review opposing side’s social media account immediately Preserve relevant information Obey ethical rules
- Download Entire Facebook Account Facebook tool Access site and preserve Recommend record actions as take screen shots. Camtasia to record screen and voice Snagit to record screen shots Do not do the preservation yourself
- Most sites state they will not respond to a civil subpoena Claim violates Stored Communications Act Some sites will surprise you so ask
- Some sites will cooperate Provide email address Provide username or ID number
- Can: Change privacy settings Disable account Delete content - must preserve first Bad behavior? Bad results. Adverse inverse for deletion – Gatto $700k in sanctions – Sprouse Disciplinary Charges
- General rule: Contradictory information viewable in social media account? Discovery granted. Social media sites will not help in civil cases Stored Communications Act Will provide data to government in criminal cases Sometimes sites will fight
- Unique considerations in your areas What are you looking for What might opposing counsel be seeking What issues do you forsee
- What should you ask? How can you confirm ownership? What happens if the person lies?
- If the witness won’t cooperate, what do you do? (call person who preserved the evidence) What questions will you ask that person? How do you convince the jury of reliability? What is the law on admission and authentication?