For my seminar at the Solo and Small Firm Conference in August, 2013. Explores how the use of social media can impact cases, explains how to find data, provides advice on communicating with clients on social media, and discusses preservation and ethics.

1. Social Media – Not Just for Marketing
Solo and Small Firm Practice Section Conference
Pennsylvania Bar Institute
August, 20013
Jennifer Ellis
Lowenthal & Abrams
Jennifer Ellis, JD Consulting
www.jlellis.net
www.lowabram.com

2. Slides Available
www.jlellis.net/blog/socialmedia_PBI

3. Today’s Discussion
• Why Social Media Matters
• Potential Business
• Available Information
• Impact on Cases
• Finding Information
• E-Discovery
• Ethics

4. 1.15 billion
1 billion users per month
343 million
130 million
4 billion photos
70 million
500 million
66 Million Blogs
225 million
33 million
1.3 million businesses
216.3 million users
108. 9 million blogs

5. Why Social Media Matters
• Numbers
• Society
• Expectations
• Data
• Impact

6. Potential Business
• Discuss with clients the need for:
– Wills dealing with social media accounts after
death
– Employment policies
– Business policies
– Intellectual property concerns
– Privacy issues

7. What is Available? Everything
• People provide a lot of information online
– Intentionally
– Accidentally
• How?
– Social Media
– Advertising Trackers
– Blog Posts
• Blog Comments

8. Famous Last Words
I thought it was private

9. Social Media Can Destroy 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

10. Social Media Can Destroy Cases
• Facebook
– Numerous people claim serious injuries and show
contradictory information on Facebook
– Decreases settlement strength and value of case.
Sometimes results in lost cases.

11. Advice
• Discuss social media use with your clients
• Instruct clients to stop using social media
– Explain that anything can impact a case
– Explain client cannot delete content
– Discuss privacy settings

12. Advice
• Review client’s social media account
immediately
• Review opposing side’s social media account
immediately
– Preserve relevant information
– Obey ethical rules

13. Researching Social Media

14. Finding Data Isn’t Easy
• Not like searching on Lexis or Westlaw
– Various search engines
– Privacy settings
– Legal issues

15. Three or Four Pronged Approach
• 1. Gather Data about Person
• 2. Find Account(s)
• 3. Review Accounts
• 4. Verify Information

16. 1. Gather Data
• Name(s)
• Email Address(es)
• Site(s) using
• Links to accounts
• Is your client connected to the person?

17. 2. Find the Account
• Use search techniques to find the account
–Might require offline techniques
• Cooperation of account owner
• Discovery

18. 3. Review the Account
• Access what you can
–Privacy settings will be an issue in some
cases

19. 4. Verify
• Does the account belong to the person you are
seeking?
– Compare with what you know about the person
• Pictures
• Email address(es)
• Other details
– Use other accounts or online presence to verify
• Was the account created by a third party to hurt the
person?

20. Facebook and Curtis D. Ellis
• Curtis is suing Rami and Angelou for harm he
suffered:
–Rami tried to touch Curtis’ Rawhide
–Angelou lay on Curtis’ back

21. The Claims
• Cannot do his job, i.e. Guarding house and
person of his owner
– Feels jumpy and distracted
– Unable to focus as necessary
– Having issues barking
• Substantial loss of life enjoyment
– Unable to
– Eat his favorite food
– Visit his friends
– Engage in physical activity

22. The Plaintiff

23. The Defendants

24. Pause to Review 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

25. What the Public Can See
No Information
Publicly Shared
Photos

26. What the Public Can See
Looks Like Curtis
Doesn’t Post Much

27. What Friends Can See
Details Curtis
has shared Posts by Others
on Curtis’ Wall
Friends

28. What Friends Can See
Check Ins to
locations
Interests
Posts and
Answers

29. Individual Posts and Pictures
Choose Who Sees What

30. Finding Someone
• No Connection?
–Can be difficult

31. Get ID Link if You Can
• Individual settings matter here
too
• The more private the settings
the harder to find
• People can choose to be
searchable in Google, most don’t

32. Back to Curtis D. Ellis v.
Rami & Angelou
• Curtis is friends on Facebook with Rami &
Angelou (Cats)
• Cats can access his account
• What has Curtis provided to counter the
claims?

33. Post: Concerned about Cats
Curtis explains his
concerns

34. Picture: Angelou on Back
Angelou did
in fact lay on
Curtis’ back

35. However!
Curtis is
Clearly
Guarding

36. And Barking

37. And Eating Burgers

38. Curtis Might Have a Problem
With his Case

39. The Problem of Popular Names -
Verification
• Question
–Does Jennifer Ellis have a MySpace
Account?
• What do we know about Jennifer Ellis?
–Lives in Pennsylvania
–34 to 45 years old
–Attorney

40. Look on Google?
3.2 Million Results

41. Look on MySpace? 500 Results

42. Learn the Tools of Each Site
MySpace Advanced Search

43. 2 Results – No Picture

44. Examine Account

45. Follow Data Where it Leads

46. Examine Site for Clues

47. Twitter Search

48. Twitter Requires Operators

49. More Twitter Operators

52. YouTube

53. YouTube: Filter

54. Google+
• Must be in your circles or
• Publicly shared
• Works like regular Google search
–Google+ results integrated into regular
Google results
• Bookmark search for repetition

56. Google+ : Filter

57. LinkedIn Search

58. LinkedIn Search

59. Ethics of Social Media in Cases
• Can review openly viewable data from
opposing side
–Cannot friend opposing side
• Two NJ attorneys in trouble for friending
opposing client
• Numerous guidance opinions

60. Ethics of Social Media in Cases
• Can friend opposing witness
• Must make it clear who you are
• District attorney fired for friending witnesses,
pretending to be ex-girlfriend of defendant
• Can research jurors
– Must not communicate with jurors
–Includes friending

61. Spoliation & Social Media
• Cannot delete account, posts, pictures or
other content
–Adverse inverse for deletion – Gatto
–$700k in sanctions – Sprouse
• Disciplinary Charges
• Can:
–Change privacy settings
–Disable account

62. Litigation Tools
• Notice to Preserve
• Interrogatories
• Request for Production
• During Depositions
• Continuous surveillance of ethically available
online content

63. What to Request
• Immediately request preservation of all online
activities
• Obtain links to all social media accounts
–Direct links
• Obtain all email addresses used to access social
media accounts
• Watch out for duplicate accounts
• Request information about all online activities
–Don’t forget blog comments

64. Discovery of Social Media
• 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 will fight

65. Data Preservation
• 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

66. Do Not Do the Preservation Yourself
• Will become a witness in your own case
– Remember the fired district attorney

67. What is Competence?
• ABA is seeking to explore and implement
requirements surrounding technology and
ethical use in law practice.
• Pennsylvania Bar Association exploring similar
issues and seeking to amend or provide
comments to Pennsylvania rules.

68. Proposed Comment [6] to Rule 1.1
Maintaining Competence – 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 technology, engage in continuing
study and education and comply with all
continuing legal education requirement to which
the lawyer is subject.
Slide from Daniel Siegel, Law Offices of Daniel J. Siegel

69. Thank you
www.jlellis.net/blog/socialmedia_PBI
Jennifer Ellis
Lowenthal & Abrams
Jennifer Ellis, JD Consulting
www.jlellis.net
www.lowabram.com