Social Media and the Law: Recent Cases and Best Practices

Social Media and the Law
September 6, 2016

Agenda
Social Media in Litigation and Discovery
Recent Social Media Caselaw
Social Media Best Practices & Ethics Concerns
Emojis and the Law

Presenters
John Isaza
Partner, Rimon Law
Aryan Kushan
American University, Washington College of Law
Eric Goldman
Santa Clara University School of Law

Ensuring Social Media Litigation & Discovery
Readiness
By: John Isaza, Esq., FAI, Partner, Rimon Law

PART I
Scope of Discovery in
Social Media

© 2017 Rimon, P.C. All Rights Reserved.
 
 
 
 
Rule 26(b) – Amendment To Promote Proportionality in Discovery
• Rule 26(b)(1) Scope in General
✓ Unless otherwise limited by court order, the scope of discovery is as
follows:
– Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery outweighs its
likely benefit [emphasis added].
– Information within this scope of discovery need not be admissible in evidence
to be discoverable.

Effect of Privacy Settings
Davenport v. State Farm Mut. Auto Ins. Co., 2012 WL 555759 (M.D. Fla.
2012)
and
Palma v. Metro PCS Wireless, Inc., 18 F.Supp.3d 1346 (M.D. Fla. 2014).
The mere fact that the Plaintiff activated a social media site's privacy settings
to restrict who may access and view her postings does not provide blanket
exemption from discovery in this civil litigation.

 
Production of Log-In’s and PW’s 
 
Moore v. Wayne Smith Trucking Inc., No. Civ. A. 14-1919, 2015 WL 6438913, at *2 (E.D. La. Oct. 22, 2015)
• Court declines to require Defendant to share his log-in or password
information with Plaintiffs.
• Court directs that Defendant postings be made available to Defendant's
counsel and that they be reviewed by Defendant's counsel—not Defendant
himself—to determine whether they fit into one or more of the categories of
discovery

Types of Discoverable Accounts
Typical requests:
1) every online profile
2) Post
3) Message
4) Tweet
5) Reply
6) Retweet
7) status update
8) wall comment
9) group joined
10) activity stream
11) blog entry
12) Photograph
13) Video
14) online communication.
.

Attempts to Limit Based on Time Frame
Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 116
(E.D.N.Y. 2013) Defendants are entitled to a sampling of Plaintiff's Facebook
activity for the period November 2011 to November 2013, limited to any “specific
references to the emotional distress [Plaintiff] claims she suffered” in the
Complaint, and any “treatment she received in connection [there]with.”
The scope of Defendants' request also is flawed because it is not limited to a
reasonable period of time. Defendants effectively have requested the Facebook
archive for Plaintiff's decedent from 2006 (the year Facebook became available)
until her death in 2013. (Defendants' Reply Brief at p. 2.) Defendants, however,
have failed to show why all Facebook information going back to 2006 (if Plaintiff's
decedent even had a Facebook account in 2006) is relevant under Rule 26(b)
(1). (Ye v. Cliff Veissman, Inc.N.D.Ill. March 07, 2016 Slip Copy)

Foreseeability, Websites, WhatsApp
• Marten Transport v. Plattform Advertising, Inc., No. 14-cv-02464, 2016 WL
492743 (D. Kan. Feb. 8, 2016) (2013 internet history on the computer of the
employee at issue was no longer available because the employee had been
relocated to a new workstation and assigned a different computer)
• McFadden v. Washington Metro. Area Transit Auth., 168 F. Supp. 3d 100
(D.D.C. Mar. 7, 2016) (by the time this matter was before the court, the web site
had been taken down.)
• Moulton v. Bane, No. 14-cv-265, 2015 WL 7776892 (D.N.H. Dec. 2, 2015)
(Court found loss occurred through the routine operation of an electronic
information system, that there was no evidence of intent to destroy discoverable
evidence, and that the messages were later recovered.)

General Cell Phone Activity
• Restrepo v. Carrera, No. 3D15–1964, 2016 WL 231955 (Fla. Ct. App. 3d
Dist. Jan. 20, 2016); opinion withdrawn and superseded on clarification
by Restrepo v. Carrera, 189 So. 3d 1033 (Fla. Dist. Ct. App. 2016)
• The Court of Appeals quashed an order from the trial court requiring
petitioner to provide information regarding all her cell phone activity
during the six hours before the time of the crash and the six hours after
the crash, stating that the order violated petitioner's Fifth Amendment
rights.

Points to Remember
Courts not inclined to grant unfettered access to accounts,
especially passwords and user names.2
Good practice to retain snap shots of website content,
especially if anticipated litigation is looming.
4
3
Discovery likely if provide very strict and narrow time frames
that are relevant to issues at hand.
Privacy settings do not mean information is not discoverable.1

Types of Cases Litigated
• Personal Injury - Rhone v. Schneider National Carriers,
Inc., No. 4:15-cv-01096, 2016 WL 1594453 (E.D. Mo. Apr.
21, 2016).
• Employment Termination - Artt v. Orange Lake Country
Club Realty, Inc. No. 6:14–cv–956–Orl–40, 2015 WL
4911086, at *2 (M.D. Fla. Aug. 17, 2015)
• Criminal Acts - United States v. Browne, 834 F.3d 403 (3d
Cir. 2016).

Types of Cases Litigated (cont’d)
• Zoning Disputes - Congregation Rabbinical College of
Tartikov, Inc. v. Village of Pomona 138 F. Supp. 3d 352
(S.D.N.Y. 2015).
• Trademark Infringement - Marten Transport v. Plattform
Advertising, Inc., No. 14-cv-02464-JWL-TJJ, 2016 WL
492743 (D. Kan. Feb. 8, 2016).
• Fraud on the Court - Pahoua Xiong v. Knight Transp.. Inc.,
658 F. App'x 884 (10th Cir. 2016)

Types of Cases Litigated (cont’d)
• Housing Discrimination - Thurmond v. Bowman, 211 F.
Supp. 3d 554 (W.D.N.Y. 2016)
• Employment Discrimination - Roberts v. Clark County
School District, 312 F.R.D. 594 (D. Nev. 2016).

Thank you
John J. Isaza, Esq., FAI
Records and Information Governance Partner, Rimon, PC
john.isaza@rimonlaw.com
(949) 715-7010

Social Media Ethics and
Best Practices
Aryan Kushan

ABA Model Rules
• Rule 1.1 Competence - A lawyer shall provide competent representation to a
client. Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation.
• Comment #8 - To maintain the requisite knowledge and skill, a lawyer
should 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 education requirements to which the lawyer is subject.

ABA Model Rules
• “[I]n order to provide competent representation in accordance with Rule 1.1,
a lawyer should (1) have a basic knowledge of how social media websites
work, and (2) advise clients about the issues that may arise as a result of
their use of these websites.” Pennsylvania Bar Association Formal Op.
2014-300.
• “The failure of a convicted habeas petitioner’s attorney to investigate the
social media recantation of a sexual abuse victim was held to be ineffective
assistance of counsel,” Cannedy v. Adams, 706 F.3d 1148 (9th Cir. 2013).
• “Counsel has an affirmative duty to research jurors on line,” Johnson v.
McCullough, 306 S.W.3d 551 (Mo. 2010).

eDiscovery Competency
• State Bar of California Standing Committee on Professional Responsibility and
Conduct issued Formal Opinion No. 2015-193
• Attorney competence related to litigation generally requires, among other things,
and at a minimum, a basic understanding of, and facility with, issues relating to
e-discovery, including the discovery of electronically stored information (“ESI”).
On a case-by-case basis, the duty of competence may require a higher level of
technical knowledge and ability, depending on the e-discovery issues involved in
a matter, and the nature of the ESI. Competency may require even a highly
experienced attorney to seek assistance in some litigation matters involving ESI.
• If an attorney is not familiar with eDiscovery technology, what should she do?
• Decline representation
• Associate with or consult competent counsel or technical experts who are familiar with
the technology
• If latter, attorney is under ethical responsibility to oversee the process
• http://ethics.calbar.ca.gov/Portals/9/documents/Opinions/
CAL%202015-193%20%5B11-0004%5D%20(06-30-15)%20-%20FINAL.pdf

ABA Model Rules
• Florida requires 1 CLE credit a year in technology
• February 2017 – ABA adopted Model Rule for Minimum Continuing Legal
Education
• Recommended accrediting technology programs that educate safe and effective use
of technology in practice
• Making lawyers more culpable to not understanding or using technology in practice
• Technology exposure isn’t enough

Advising Clients
• NYSBA Guideline No. 4A:
“A lawyer may advise a client as to what content may be maintained or made private
on her social media account, as well as to what content may be ‘taken down’ or removed,
whether posted by the client or someone else, as long as there is no violation of common
law or any statute, rule, or regulation relating to the preservation of information. Unless
an appropriate record of the social media information or data is preserved, a party or
nonparty may not delete information from a social media profile that is subject to a duty to
preserve.”
• Philadelphia BA Opinion 2014-5:
“A lawyer may instruct a client to make information on the social media website
‘private,’ but may not instruct or permit the client to delete/destroy a relevant photo, link,
text or other content, so that it no longer exists. “

Risks
• Privacy – Remember to protect attorney/client privilege
• During discovery or investigation – Remember to check all social media platforms.
Ask your client, or opposition, to list ALL of the social media platforms that they use.
Forgetting one could be a violation of Rule 1.1!
• Failing to properly counsel clients on social media use
• Spoliation

Sample Social Media Discovery
Questions
• Narrowly tailored will most likely be answered favorably and result in admissible
evidence. Be precise with what you want – IP, public posts, private messages/
posts, comments, pictures, videos
• FRCP 26 – “Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs of
the case”
• Deposition questions:
• Q: Do you have any social media accounts where you post personal information about yourself?
• Which ones do you use?
• Have you had other social media accounts that you no longer use?
• What name(s) do you use for yourself for your social media account(s)?
• If we wanted to see the information you post on your social media account(s), what would
be the best way to see it?
• Do I have your permission, without a court order, to see what you have on you social media
account(s)?

Questions
• Party consent to username/password information must contain:
1. background information (i.e. username, password, email);
2. document requests (i.e. wall posts, emails, photos, friend lists, etc.); and
3. Indemnity for the social media company
4. Should most likely have a specified time in which opposing counsel can access
and who can access (counsel and/or party)
• No guarantee information you find is relevant
• Admissibility concerns
• Hostility between parties
• Spoliation potential

Questions
• Deposition questions:
• Q: Have you ever posted comments on any Internet blog?
• Was it a personal blog, company blog, or something else?
• What was the name(s) of the blog(s)? What was the subject matter?
• When did you do the blogging?
• What name(s) did you use?
• If we wanted to see the information you put on this blog, what would be the best
way to find it?
• Sample interrogatory questions:
• SAMPLE INTERROGATORY NO. 1: State the name, web address, and user name
for all blogs, online forums, and social networking websites that [Plaintiff/
Defendant] has belonged or had membership to [_____] to the Present.
• SAMPLE INTERROGATORY NO. 2: Identify the user name and email address for
any social media account used by YOU from [_____] to the Present.
• #2 is too broad

Sample Social Media Discovery Questions
• Document Requests: Good?
• For each social media account maintained by you, please produce your account
data for the period of [____] through present.
• Document Request:
• For each social media account maintained by you, please produce the following
content: Wall posts, comments, messages, and photos from [______] through
present that:
• Refer or relate to allegations set forth in complaint
• Refer or relate to any facts or defenses raised in the answer
• http://blog.ericgoldman.org/archives/2012/10/social_media_di_1.htm

Authentication
• How do you authenticate social media posts?
• Provide facts that would convince a jury that the person in question made the posts
(IP address, account log ins, similar activity on the page, etc.)
• Burden then shifts to the objecting party to show facts that the person in question
did not make the posts

Emojis and the Law
Eric Goldman
Santa Clara University School of Law
egoldman@gmail.com
¯_(ツ)_/¯

Definitions
• Emoticons = emotion + icon (portmanteau)
• Kaomoji: ¯_(ツ)_/¯
• Emoji = “picture word” (Japanese)
• Unicode emojis = standard definition but proprietary
implementations
• Proprietary emojis (sometimes called “stickers”) =
unlikely to work across platforms, so omitted or
replaced with placeholder

Interpretation Issues (1)
• Emojis are integral to a conversation
• Emojis can change the meaning of text ;-)
• Emojis pose interpretative challenges
• No dictionary
• Dialects/cultural variations
• Unsettled grammar rules
• Conveying emotions
• What does “unamused” face mean?
• “disappointment,” “depressing,”
“unimpressed” or “suspicious

Interpretation Issues (2)
• Technology mediation changes the sender’s
meaning
• Intra-Platform Version Incompatibilities
• Cross-Platform Depiction Diversity
• Cross-Platform Omissions
• Adjudicators may need to see exactly what
*both* sender and recipient saw

• Emojis as courtroom evidence
• Displaying emojis in opinions
• Searchability
Emojis as Evidence

John Isaza
john.isaza@rimonlaw.com
Aryan Kushan
akushan@wcl.american.edu
Eric Goldman
egoldman@gmail.com

More Resources:
Check out the “Handbook on Global Social Media Law for Business
Lawyers,” John Isaza and Valerie Surgenor, Eds.
Download Eric Goldman’s “Surveying the Law of Emojis.”
See a demo of Logikcull, the powerfully simply, highly secure eDiscovery
and data management software.
For the technology and eDiscovery
news and tips, interviews with judges
and practitioners, and more, sign up for
Logikcull’s blog, Closing the Loop.

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