: Facebook : E-Discovery Law Alert

Home > Facebook >

Posted on April 22, 2013 by Jennifer Marino Thibodaux

Federal Judge in New Jersey Issues Adverse Inference Instruction Due to Plaintiff's Failure to Preserve Facebook Information in Personal Injury Action

Recently, a federal judge in New Jersey imposed sanctions for a personal injury plaintiff’s failure to preserve his Facebook account. The Court concluded that it was “beyond dispute that Plaintiff had a duty to preserve his Facebook account,” and granted the defendant’s motion for an adverse inference instruction.

The plaintiff allegedly suffered serious injuries at work, which purportedly left him permanently disabled, unable to work, and limited in his “physical and social activities.” The defendants sought the plaintiff’s Facebook information, alleging it related to damages, but the plaintiff declined to provide an authorization form for Facebook. During a settlement conference, the Magistrate Judge ordered the plaintiff to execute the appropriate form, and the plaintiff agreed to change his account password to allow defense counsel to access his Facebook page. Defense counsel then accessed his account and printed portions of the plaintiff’s Facebook page.

Days later, plaintiff’s counsel told defense counsel that the plaintiff had received a Facebook alert indicating that an unknown IP address in New Jersey accessed his account. Defense counsel confirmed that the plaintiff’s account was accessed, and the parties disagreed as to whether defense counsel was able to directly access the account. Defense counsel also advised that the defendants served a subpoena on Facebook, enclosing the authorization form executed by the plaintiff, to obtain the plaintiff’s account information.

Facebook objected to the subpoena, citing the Federal Stored Communications Act, and recommended that the plaintiff download his Facebook information and provide it to defense counsel. The parties disputed whether the plaintiff agreed to take these steps. Weeks later, defense counsel learned that the plaintiff deactivated his Facebook account, and then Facebook automatically deleted his account fourteen days later, so all account information was lost.

The defendant requested an adverse inference instruction or monetary sanctions. The Magistrate Judge applied the four factor test for sanctions as set forth by the Third Circuit in Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994). The Magistrate Judge found that the deletion of the Facebook account “clearly” satisfied the first, third, and fourth Schmid factors: the Facebook information was within the plaintiff’s control as the accountholder; the Facebook account was relevant because the plaintiff put his social and physical activities at issue in the litigation, i.e., the “posts, comments, status updates, and other information posted or made by the Plaintiff subsequent to the date of the alleged incident” would bear upon damages; and it was reasonably foreseeable that Facebook information would be sought because the defendant requested the social media information months before the plaintiff deactivated his account, and the parties previously discussed the Facebook information during a settlement conference with the Court. Consequently, the Magistrate Judge concluded that “it is beyond dispute that Plaintiff had a duty to preserve his Facebook account at the time it was deactivated and deleted.”

With respect to whether the plaintiff actually suppressed or withheld the Facebook information, the plaintiff argued that he was involved in a “contentious” divorce and his Facebook account had been “hacked into” many times before, so he acted reasonably when he deactivated his account after receiving the Facebook notification. The plaintiff also argued that he did not mean to permanently delete his account, only deactivate it, and that it was deleted automatically due to Facebook policy; he also alleged that he unsuccessfully attempted to restore the account. The Court reasoned that even if the plaintiff did not intend to delete his account, his intent was of no matter because the spoliated evidence was relevant, and “there is no dispute that Plaintiff intentionally deactivated the account.” The Court concluded that the plaintiff “failed to preserve relevant evidence” despite the alleged unauthorized access by defense counsel and the plaintiff’s unsuccessful restoration efforts. Because the defendants were prejudiced by the failure to obtain Facebook information that was relevant to damages and credibility, the adverse inference instruction was appropriate. The Court did not find, however, that an award of fees and costs was appropriate.

Attorneys, pay attention: if your client uses Facebook, it must be maintained like any other electronically-stored information or hard copy document -- particularly if its import is specifically sought in discovery or discussed with the Court. This is not the first time that a federal judge in New Jersey has awarded sanctions for failure to preserve social media, and it likely will not be the last.

Jennifer Marino Thibodaux is an Associate in the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.

Tags: Adverse Inference, Allied Aviation Services, Facebook, Legal Decisions & Court Rules, Social Media, United Air Lines, Inc.

Posted on February 7, 2013 by Melissa DeHonney

Magistrate Judge Orders Production of Social Media Discovery But Fashions Novel Protocol Designed to Protect Privacy Concerns

Where the requesting party makes a threshold showing of relevance, courts now routinely grant discovery of social media notwithstanding so-called “privacy objections.” Indeed, as one court recently noted, there is “no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” But on November 7, 2012, in EEOC v. Original Honeybaked Ham Co., Magistrate Judge Michael E. Hegarty of the United States District Court for the District of Colorado ordered all class members to produce social media discovery to the defendant subject to what the EEOC ultimately called a “somewhat unusual procedure.”

Dispensing with the plaintiffs’ relevancy objection, the Court first found that the defendant was not engaging in “the proverbial fishing expedition,” since it had already demonstrated the relevancy of content from the Facebook wall of one plaintiff. Though relevancy was no obstacle, the Court took heed of the plaintiffs’ “privacy concerns” and established a “process designed to gather only discoverable information”:

First, the class members were required to produce to a court-appointed special master cell phones used during the relevant period, and information necessary to access social media websites, email accounts, blogs, or other platforms “used for communications or pictures” during the relevant period.
Second, the parties were ordered to create and provide answers to a questionnaire to identify sources of discoverable information, and to provide the special master with instructions defining the discovery parameters.
Third, the Court would conduct an in camera review, culling that which it found “legally relevant under the applicable rules.”
Fourth and finally, the EEOC could then conduct a privilege review of this data, ultimately producing only non-privileged, relevant materials to the defendant, together with the requisite privilege log, if any.

It is curious that the Honeybaked Ham Court took these precautions in response to the plaintiffs’ privacy concerns. As noted, many other courts, in contrast, have held that there can be no expectation of privacy in social media. In Zimmerman v. Weis Markets, for example, the Court noted that “[a]ll the authorities recognize that Facebook and MySpace do not guarantee complete privacy.” (You can read a detailed discussion of Zimmerman here.) The Zimmerman Court “flatly rejected” a proposal similar to the protocol that the Honeybaked Ham Court ordered since it would impose “an unfair burden” on the court and require it “to guess as to what is germane to defenses which may be raised at trial.” What’s more, the Honeybaked Ham Court itself specifically likened social media to “a file folder titled ‘Everything About Me,’” which was “voluntarily shared with others.” Under the circumstances, it is difficult to justify an expectation of privacy.

Addressing another hot topic — cost shifting — the Honeybaked Ham Court initially ordered the parties to split the costs of the forensic evaluation, notwithstanding its finding that “the potential cost of producing the discovery is commensurate with the dollar amount at issue.” The Court further indicated that it would “relieve the Plaintiff / Claimants of monetary responsibility” if “this effort produces little or no relevant information.” The Court later issued an amended order modifying the discovery protocol to allow an EEOC employee with forensic qualifications to undertake the tasks previously assigned to the special master, “at the cost of the EEOC (utilizing outside vendors as necessary).” Thus, it seems that the EEOC will bear the costs of this endeavor.

Notably, on November 21, 2012, the EEOC filed objections to the Magistrate Judge’s Order pursuant to Federal Rule of Civil Procedure 72. The defendant responded on December 10, 2012, but significant portions of that response are not publicly available. Thus, it remains to be seen whether the rulings discussed above are final. Any further significant developments will be reported here.

Melissa DeHonney is Counsel to the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.

Tags: Attorney Client Privilege, Cell Phones, E-Discovery Special Master, Facebook, Legal Decisions & Court Rules, Social Media

Posted on January 18, 2013 by Elizabeth Ann Fitzwater

Netflix Case Illustrates Potential Social Media Pitfalls Facing Public Companies

As we reported in the Gibbons E-Discovery Law Alert in May 2012, “Reg FD” could present a potential pitfall for those that post material non-public information via social media platforms. In early December 2012, that “pitfall” became a reality for Netflix Inc. CEO Reed Hastings. In July 2012 Hastings published on his public Facebook page a 43-word post concerning viewership statistics, including that Netflix subscribers had watched one billion hours of video the previous month.

The post presents at least two questions. First, whether Hastings’s statement constitutes “material” information falling within the purview of Reg FD. As a reminder, Reg FD mandates that, when an issuer, or a person acting on behalf of the issuer, discloses material non-public information to certain enumerated persons (generally, securities market professionals and security holders who may trade on the basis of the information), it must make public disclosure of that information simultaneously (for intentional disclosures), or promptly (for non-intentional disclosures).

The second -- and far more novel -- issue is whether posting to over 200,000 people constitutes a “public” disclosure. The SEC staff does not seem to think so. On December 6, 2012, Hastings disclosed in an SEC filing that Netflix had received a “Wells notice” from the SEC staff, recommending that the agency bring an enforcement action against Netflix over the July post. Specifically, the SEC is concerned that Hastings’s post violated Reg FD in that a post on Facebook is not a disclosure to all investors at the same time. The Wells notice does not mean the SEC will actually prosecute Netflix. Moreover, such a prosecution would likely face serious challenges because a lynchpin is proving that a public posting on Facebook is not public dissemination. That said, a company like Netflix that has struggled to maintain relevancy in an increasingly digital age nonetheless felt the sting of a decreasing stock price in the wake of the announcement of the Wells notice.

While regulators and public companies find their footing in applying a 12 year old rule to new technologies, it is still a good idea to: (i) ensure that their message is being simultaneously delivered to a wider audience instead of to a fraction of subscribers to a particular social media platform; and (ii) have documented policies and procedures concerning the use of social media. Otherwise, a public company may find itself under unwanted public scrutiny with undesirable consequences regardless of culpability.

Elizabeth Ann Fitzwater is Counsel to the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.

Tags: Compliance, Corporate Information & Records Management Policies, Facebook, LinkedIn, Policies, Social Media, Twitter

Posted on October 12, 2012 by Gibbons P.C.

No Fishing Expeditions Allowed When It Comes to Discovery of Social Media

A recent decision in California, Mailhoit v. Home Depot, U.S.A., Inc. et al., Civ. No. 11-03892 (D.E. 105, C.D. Cal. Sept. 7, 2012) reiterates the limits to which social media information is discoverable. Consistent with Fed. R. Civ. P. 26(b)(1) and 34, the Court made clear in the context of a motion to compel that “discovery requests for social networking site content must be reasonably calculated to lead to the discovery of admissible evidence and describe the information to be produced with ‘reasonable particularity.’”

At issue in Mailhoit were four categories of discovery sought by the defendant in connection with the plaintiff’s claims of discrimination and emotional distress:

Any profiles, postings or messages. . . from social networking sites from October 2005 (the approximate date Plaintiff first claimed she was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff;
Third-party communications to Plaintiff that place her own communications in context;
All social networking communications between Plaintiff and any current or former Home Depot employees that pertain to her employment at Home Depot or this lawsuit; and
Any pictures of Plaintiff taken during the relevant time period and posted on Plaintiff’s profile.

In analyzing categories 1, 2 and 4, the Court determined that although some communications could support or refute Plaintiff’s claims of emotional distress, Defendant had failed to put “a reasonable person of ordinary intelligence’ on notice of which specific documents or information would be responsive to the request,” thereby failing Rule 34(b)(1)(A)’s “reasonable particularity” requirement.” As a result, Defendant failed to make the “‘threshold showing’ that the request at issue is reasonably calculated to lead to the discovery of admissible evidence.” Indeed, although evidence from social networking sites is neither privileged nor protected for privacy reasons, the requesting party does not have “a generalized right to rummage at will through information that [the responding party] has limited from public view.” Rather, consistent with Fed. R. Civ. P. 26(c), information requests must be “tailored” so that it “appears reasonably calculated to lead to the discovery of admissible evidence.” Simply because a communication may, for example, reflect one’s state of mind, that communication is not necessarily discoverable under Fed. R. Civ. P. 26(c) if it does not relate to the cause of action or damages at issue.

In contrast, Category 3 was deemed a permissible request because it placed Plaintiff on adequate notice of the materials sought and was reasonably calculated to lead to the discovery of admissible evidence.

As a practical matter, when seeking social media discovery, attorneys should ensure that the requests are tailored to the claims at issue. What does that mean? Based upon the reasoning contained in this order, if you are dealing with a personal injury plaintiff who claims disability and loss of enjoyment, you should request, for example, any profiles, posts or messages that reflect the plaintiff’s participation in any travel, sports, recreation or related activities. Simply making a blanket request for all posts will not suffice under the standard set forth in Mailhoit.

Tags: Facebook, Legal Decisions & Court Rules, LinkedIn

Posted on August 28, 2012 by Jennifer Marino Thibodaux

Changing the "Games": The First Social Media Olympics

As followers of this blog know, we often bring you updates regarding the ever-changing world of social media – in particular, how it affects attorney ethics or judicial proceedings, or how it is used by financial services industry participants. Here, as the closing ceremonies for this year’s London Olympics have recently ended, we pause to reflect how the popularity of social media has “changed the game,” resulting in the world’s first “Social Media Olympics.”

The 2012 summer games mark the first time that journalists, competitors, and fans have used social media to “broadcast” the Olympics. Here are a few global highlights from this year’s “Social Media Olympics” -- some good and some bad:

Twitter shut down a journalist’s Twitter account after the journalist criticized NBC’s delayed coverage of the Olympics, stating that the journalist violated Twitter’s usage terms when he included a top NBC’s executive work e-mail address in his Tweet;
British diver Tom Daley re-Tweeted an offensive Tweet he received from a “fan” claiming that Daley let his father down with his performance; it is well-known that Daley’s father died of cancer last year;
Competitors from Switzerland and Korea were expelled from competition after using Twitter to post racial remarks aimed at other competitors;
American soccer star Hope Solo engaged in a Twitter attack against a former competitor who criticized the team’s performance;
Competitors, including such gold medalists as Michael Phelps and Gabby Douglas, used Twitter to thank their fans or comment on the games;
ABC’s popular morning news program, Good Morning America, reviewed some of the competitors’ Tweets each morning in order to keep its audience updated “in real time” about the competitors’ sentiments; and
We can’t forget the U.S. Olympic swim team’s viral YouTube video lip-synching to the pop song, “Call Me Maybe,” by Carly Rae Jepsen.

The use of social media at this year’s games only highlights what this blog has reiterated for several years: social media isn’t going anywhere, so stay tuned here before you get left behind!

Jennifer Marino Thibodaux is an Associate on the Gibbons E-Discovery Task Force.

Tags: Facebook, Social Media, Technology Developments & Issues, Twitter

Posted on June 20, 2012 by Gibbons P.C.

Attorneys' Use of Social Media to Research Jurors -- Another Ethical Land Mine

The New York City Bar Association's Formal Opinion 2012-2 examines whether ethical restrictions apply to attorneys who use search engines or social media websites for the purpose of researching jurors. While the Opinion does not oppose such research (provided no communication between an attorney and potential or sitting juror occurs), it broadly interprets “communication.” Although a “friend request” would obviously constitute a communication, the Opinion struggles with whether an inadvertent or unknowing notification or message to the juror, which was triggered by the attorney’s attempt to view a page or comments (such as what can occur when one views a person’s LinkedIn™ profile), should also be treated as a communication and thereby prohibited. Ultimately, the Opinion “takes no position” on that issue and instead, cautions attorneys to understand the technology at issue, refrain from engaging in deception to gather information, and promptly report any discoveries of juror misconduct that are gleaned from the research.

Attorneys researching jurors is not a novel concept. Nor is the prohibition of communications between jurors and attorneys as codified in New York’s Rule of Professional Conduct (“RPC”) 3.5(a)(4), which states in relevant part that “a lawyer shall not . . . (4) communicate or cause another to communicate with a member of the jury venire from which the jury will be selected for the trial of a case or, during the trial of a case, with any member of the juror unless authorized to do so by law or court order.” The application of these fundamentals and the distinction between private research and interactive communication, however, have been somewhat obscured by continuously evolving technology.

Because the Opinion interprets RPC 3.5’s absence of a mens rea or specific intent requirement as forbidding all communications with jurors - even if the attorney’s goal is to gather information - it concedes that technological challenges in this context lie in the constantly changing “functionality, policies and features of social media services.” By way of example, the extent to which an attorney can view information depends on the website at issue and whether the user has designated specific privacy settings. Likewise, some services alert a user when someone has viewed the user’s profile while others only do so if that someone has initiated “an interaction.” Therefore, the Opinion urges attorneys to educate themselves about the properties of the website or service at issue to avoid any inadvertent communication.

The critical tension between the RPCs and the ability to use Internet tools to research jurors is highlighted by the following excerpt from the Opinion:

A request or notification transmitted through a social media service may constitute a communication even if it is technically generated by the service rather than the attorney, is not accepted, is ignored, or consists of nothing more than the automated message of which the “sender” was unaware. In each case, at a minimum, the researcher imparted to the person being researched the knowledge that he or she is being investigated.

As with prior ethics opinions from various jurisdictions, this Opinion demonstrates how the Internet has simultaneously provided attorneys with easy access to all types of information and created an ethical minefield. In fact, the propriety of attorneys misrepresenting their identity through online communications to obtain otherwise unavailable information, the prohibition against using a third party such as a paralegal to engage in any such deceit or misrepresentation, and the restrictions on attorneys regarding “friending” witnesses and parties have been examined by the same author in previous blog posts made on October 8, 2009 and August 25, 2011.

Unlike the opinions referenced in those prior posts, however, Formal Opinion 2012-02 does not make a definitive finding or recommendation. Rather, it demonstrates that when attorneys use social media websites to research jurors, they have “arguably ‘communicated’ with the juror” if a juror receives an automated message. (Emphasis added). Similarly, it states that attempts to research a juror “might constitute a prohibited communication even if inadvertent or unintended.” Consequently, until a clear pronouncement is made in any jurisdiction, attorneys should routinely sharpen their social media researching skills and their familiarity with the technology, privacy settings and policies of a website if they intend to use that medium to research jurors.

Tags: Ethical Concerns, Facebook, Jurors, Legal Decisions & Court Rules, Social Media

Posted on February 24, 2012 by Gibbons P.C.

Still No Cure for the Malady of Jurors' Social Media Use During Trials and Deliberations

Having recognized the challenges regarding jurors’ use of social media in the courtroom, the Committee on Court Administration and Case Management requested that the Federal Judicial Center (“FJC”) survey district court judges to identify effective mechanisms to curtail this growing problem. In response, the FJC queried 952 district judges and issued Jurors’ Use of Media During Trials and Deliberations, which demonstrates that despite the various strategies devised, it is virtually impossible to prevent jurors’ use of social media and is equally difficult to detect each and every impropriety. This issue is not novel; in fact, this blog has previously reported on instances where jurors’ use of social media had a significant impact on a proceeding as well as suggestions on how to avoid such pitfalls. Click here for those postings.

The General Response

Of the 508 judges who responded to the electronic questionnaire at issue, only 30 judges or 6% reported detecting jurors’ use of social media. This discovery occurred more often during trials rather than deliberations and in criminal trials than civil trials. The social media at issue in these instances were Facebook, Google, instant messaging (“IM”) services, Twitter, Internet chat rooms, Internet bulletin boards, and MySpace.

Nature of the Use

Among the jurists who identified how jurors used social media during trial and deliberations, the most common was through jurors’ “friending” or attempting to “friend” participants in the case (meaning witnesses, parties, attorneys or judges) as well as communicating or attempting to communicate directly with participants. In addition, the judges discovered that jurors used social media to reveal parts of the deliberative process; provide information about other jurors; conduct research; generally share information about the case by, for example, revealing the likely verdict; allow someone else to hear live testimony; and conduct personal business.

Challenges with and Consequences of Detection

Of the 28 judges who indicated how they learned of a juror’s improper use of social media, the most common sources of that discovery were fellow jurors, attorneys or information learned in post-trial motions or interviews. Judges also learned of the malfeasance through court personnel or a party. Most notable is the fact that in only two instances did judges report personally observing jurors utilizing electronic devices in the courtroom. Upon learning of such improprieties, those judges have removed the juror, cautioned the juror about removal, declared a mistrial, held the juror in contempt, fined the juror, questioned the juror and/or held a hearing to determine the scope and nature of information shared.

Strategies for Preventing Jurors’ Use of Social Media Solutions

Fortunately, the majority of the judges who responded to the questionnaire have taken measures to prevent jurors from using social media during trial and/or deliberations, though surprisingly, 30 judges (6%) admitted not specifically addressing the issue with jurors. To prevent use of this media, judges have employed model jury instructions; reminded jurors during voir dire and through various points in the trial of the prohibition and the rationale behind it; confiscated phones and electronic devices during deliberation and/or at the start of each day of trial; articulated potential consequences of disobeying instructions; and/or required jurors to sign a certifications or statements promising not to use social media while serving on a jury or that they adhered to the instructions.

How do we know what, if any of those procedures are effective? The answer is we don’t. As conceded by almost half the jurists who responded to questions about preventive measures and whether they were effective, they simply do not know whether the steps taken were successful. In the meantime, while recognizing there is no panacea, judges, attorneys and fellow jurors must police the use of social media by jurors during trials and deliberations.

Tags: Blogs, Chat Rooms, Facebook, Internet, Litigation Preparedness & Strategies, Social Media

Posted on February 21, 2012 by Gibbons P.C.

Lester v. Allied Part 2: "Clean Up" of Compromising Social Media Evidence Can Result in Severe Sanctions

Though some practitioners might be in denial, the follow-up sanctions orders in Lester v. Allied Concrete Co. et al. dated May 27, 2011 and September 23, 2011 should leave no room for doubt that preservation of social media is as important as any other electronic data or discovery. Similarly, the penalty for intentionally destroying such evidence may reach beyond the purse strings.

As reported late last year in a blog posting regarding Lester Part I, defense counsel moved for sanctions against plaintiff Isaiah Lester and his attorney, Matthew B. Murray, for spoliation of Facebook evidence. Ultimately, although defense counsel’s request for a new trial was denied after the jury had reached a $10.6 million verdict related to the tragic death of Lester’s wife in an automobile accident, Lester and Murray were ordered to pay defense counsel respectively, $180,000 and $542,000. But the sanctions did not end there; Murray’s misconduct was referred to the Virginia State Bar and allegations of Lester’s perjury were referred to the local prosecutor.

During discovery, defendants sought production of the contents of Lester’s account because they believed it would help their case on the issue of damages. Defendants were inspired to pursue this evidence after discovering a photo on Facebook depicting “Lester clutching a beer can, wearing a T-shirt emblazoned with ‘I [heart] hot moms.’” Specifically, they served discovery requests that sought information relating to Lester’s Facebook account including screen-prints and attached the compromising picture.

After reviewing Lester’s Facebook page in conjunction with the discovery requests, Murray’s paralegal (at Murray’s direction) advised Lester via e-mail to “clean up” the Facebook page because “we do NOT want blow ups of other pics at trial so please, please clean up your facebook and myspace.” She also advised there were “other pics that should be deleted.” Thereafter, Murray concocted a scheme to deactivate Lester’s Facebook account and to advise defense counsel that on the date the answer to the discovery was signed that Lester had no Facebook page.

Shortly thereafter, Lester deleted 16 photos (which were ultimately available at trial) to ensure he complied with Murray’s initial “clean up” request, although Murray denied knowledge of deletion of these photos in discovery responses. Thereafter, Murray and Lester attempted -- unsuccessfully -- to cover up these communications and related acts. (Defendants’ internet technology expert was ultimately able to confirm deletion of the photos).

The amount and scope of sanctions in Lester make clear that social media evidence is as important as other electronic discovery, and that the penalties for its spoliation can be as severe as those for destroying other evidence. While the egregious malfeasance of Lester and Murray (and Murray’s paralegal, who was under his supervision) did not result in an overturned verdict (though it was reduced by around $4 million for other reasons), both counsel and client paid a high price for their cavalier treatment and destruction of Facebook evidence.

Tags: Case Summaries, Facebook, Legal Decisions & Court Rules, Sanctions, Service Providers, Social Media

Posted on February 3, 2012 by Gibbons P.C.

Ooops, They Did it Again -- Jurors Continue to Improperly Use the Internet, and Courts Struggle with Solutions

All over the country, courts are struggling with how best to prevent juror communications and/or research on the Internet, including on social media such as Facebook. What's the solution? Thus far, there is no clear answer, as evidenced by a recent New Jersey case in which a juror dodged sanctions for contempt after researching a child sex-crime case involving a former pastor on the Internet -- even after being instructed to refrain from such Internet research.

In the New Jersey case, not only did the juror research certain legal terms on Wikipedia, but he also distributed handouts to his fellow jurors several days into the deliberations -- despite several precautions in place. For example, during voir dire, the court advised that the jurors should not consider facts outside of trial testimony and exhibits and similarly should not read about the case in the media. The judge also read the model jury charge each day of the trial. It reiterated that deliberations could only be based on what was presented during trial and cautioned jurors not to read about or research the case "in print, on the Internet or on any blog."

After the trial judge declared a mistrial, Bergen County Assignment Judge Peter Doyne issued an order to show cause why the juror should not be held in contempt. Judge Doyne ultimately found that a contempt sanction was not warranted because the error appeared to be a "genuine, though perhaps reckless, mistake," adding that while the conduct was contemptuous, it was not willful beyond a reasonable doubt. Judge Doyne suggested, however, that NJ's Model Jury Charges be amended "to make unquestionably clear that the prohibition on juror research and outside materials is absolute."

These steps may be necessary, as this is not the first time that jurors have engaged in improper electronic communications or research in New Jersey. In previous matters, a juror was dismissed after attempting to “friend” a defendant on Facebook and a court reversed manslaughter convictions after a juror conducted Internet research.

Recently, in addition to proposing revisions to jury instructions, other jurisdictions have attempted to employ creative means of preventing jurors from outside communications or research and/or punishing them if they disobey. For example:

In the Southern District of New York, Shira Scheindlin, U.S.D.J., contemplated requiring jurors to sign a pledge, promising that they would not use the Internet to research the case or be subject to perjury;
In California, jurors could now be exposed to civil penalties and/or jail time if they willfully disobey jury instructions prohibiting them from engaging in electronic or wireless communications or conducting Internet research about the trial pursuant to Assembly Bill No. 141, which amends the Code of Civil Procedure and Penal Code;
In Michigan, a juror was removed from a jury, fined $250 and ordered to write an essay on the Sixth Amendment for posting a comment about the case on Facebook that she was “actually excited for jury duty tomorrow. It’s gonna be fun to tell the defendant they’re GUILTY. . . .”;
In England, a juror was sentenced to eight months in jail after friending a defendant in a drug trial;
In New Jersey, the Supreme Court recently proposed guidelines to limit the use of electronic devices in the courtroom, which do not directly address juror misconduct on the Internet, but might stem the tide of such misconduct.

Unfortunately, there is probably no cure-all solution to stop this growing problem. A recent report issued by the Federal Judicial Center last month, reinforces that challenge. At the end of the day, it is incumbent upon judges and attorneys to remain vigilant in educating jurors on what constitutes prohibited research and communications (in the traditional and cyberspace forms). Jurors should also be advised of the consequences of violating such directives.

Tags: Facebook, Internet, Jurors' Internet Use, Litigation Preparedness & Strategies, Social Media

Posted on December 8, 2011 by Scott J. Etish

In re Facebook Privacy Litigation - Uphill Battle for Plaintiffs

In a recent case in California, Facebook account holders filed a putative class action lawsuit against Facebook, alleging that Facebook knowingly forwarded personal information to online advertisers without its users’ consent. In In re Facebook Privacy Litigation, Plantiffs asserted eight causes of action against Facebook, including violations of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510, et seq. and various California laws (both statutory and common law), and all were dismissed.

At issue was the mechanism that sends a “Referrer Header” to an advertiser when a Facebook user clicks on an advertisement posted on the website. Plaintiffs asserted that when an advertiser receives a “Referrer Header” from Facebook, which indicates the webpage address the user was viewing before clicking on the advertisement, the advertiser is able to obtain substantial information about a user, including the user’s name, gender and picture. The court explained that in sending these “Referrer Headers,” Facebook “shares users’ personal information with third-party advertisers without users’ knowledge or consent, in violation of [Facebook’s] own policies.”

The court looked closely at the following language of the Wiretap Act, 18 U.S.C. § 2511(3)(a), which provides in part that an entity:

providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.

Citing the language of the statute, the court found that Plaintiffs could not state a claim under the Wiretap Act under two potential interpretations of Plaintiffs’ allegations. As to the first interpretation, the court found that Plaintiffs could not set forth a claim because the communication was “one from a user to Defendant” and therefore, Defendant could not be held liable for divulging the communication. Similarly, the court found that Plaintiffs also failed to set forth a claim under the second interpretation because the communication was a “communication from a user to an advertiser,” making the advertiser the “addressee or intended recipient.” As with the first interpretation, Defendant could not be held liable for divulging that communication.

Pursuant to the Stored Communications Act (“SCA”), 18 U.S.C. § 2702(a), “an entity providing an electronic communication service to the public ‘shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.’” Nonethless, an electronic communication service provider is permitted to reveal the contents of a communication to “an addresee or intended recipient of such communication” or “with the lawful consent” of an addressee or intended recipient of a communication. 18 U.S.C. § 2702(b)(1) and (3). As with the analysis of the Wiretap Act, the court found that Plaintiffs failed to state a claim under the SCA under either interpretation of Plaintiffs’ claims because Defendant was allowed to divulge the communications to the advertisers. Although the court ultimately granted Plaintiffs leave to amend the complaint to replead their allegations, the court’s initial ruling suggests that Plaintiffs will have their hands full convincing the court that this litigation should progress past the pleading stage.

Scott J. Etish is an Associate on the Gibbons E-Discovery Task Force.

Tags: Case Summaries, Facebook, Legal Decisions & Court Rules, Service Providers

Posted on November 16, 2011 by Robert D. Brown, Jr.

The Fifth Annual Gibbons E-Discovery Conference Kicks Off with an Interactive and Thought-Provoking Overview of the Past Year's Pivotal E-Discovery Case Decisions

The Fifth Annual Gibbons E-Discovery Conference kicked off with an interactive overview of the important judicial decisions from 2011 that shaped and redefined the e-discovery landscape. Before an audience of general and in-house counsel, representing companies throughout the tri-state area, the esteemed panel of speakers, including Michael R. Arkfeld, Paul E. Asfendis, and Mara E. Zazzali-Hogan, moderated by Scott J. Etish, tackled the issues faced by the courts over the past year. Through a series of hypotheticals, the panelists and attendees analyzed and discussed how to handle the tough e-discovery issues that arose and how the courts’ decisions again reshaped the e-discovery landscape as we know it. Litigation hold protocols and spoliation concerns, the use of social media in discovery with its attendant ethical concerns, and the use of social media and the Internet in the courtroom were the hot topics of the day. This interactive overview of the past year’s hot button, e-discovery issues was an instant success and clearly set the tone for the remainder of the conference.

Right out of the gate, the panelists and audience examined and debated Judge Scheindlin’s aggressive litigation hold protocol set forth in Pension Committee and the ramifications and aftermath it has since had on litigants. The attendees were treated to an in-depth, interactive discussion of two critical opinions from 2010-11 decided in the Southern and Western Districts of New York. These decisions made it clear that there are other approaches to the problems raised in Pension Committee other than the “gotcha game” that has since ensued. The panelists and attendees discussed the significance of the split in authority clearly seen in Pension Committee (S.D.N.Y), Orbit One (S.D.N.Y.) and Steuben Foods, Inc. (W.D.N.Y.). The implications of whether the more liberal and practical approach found in the Orbit One and Steuben Foods decisions were also discussed at length, during which time the attendees were asked to offer their insights on whether and how they would approach their existing litigation hold protocols as a result of these recent opinions. This examination served as a perfect segue into the analysis of other key issues raised by litigation hold protocols and the production of electronic evidence, including spoliation of evidence, sanctions, and waiver of privileges by inadvertent production of data.

In addition to the considerable discussion afforded to the recent changes in the litigation hold area, the panelists next offered a thought-provoking analysis of the important developments shaping the continued evolution of e-discovery disputes stemming from discovery requests for information maintained by a litigant or witness on social media host sites. As social media has become a modern replacement for face-to-face communications, its role in the litigation of cases has increased exponentially. The panel debated the primary question of whether counsel should be afforded access to the private sections of a litigant’s Facebook, MySpace or other social media account and how the courts and local bar associations answered this question over the past year. The discussion also focused on what measures counsel can and should employ to obtain access to this private information once litigation is threatened. As the panel emphatically stressed, the past year’s decisions and bar association opinions clearly demonstrate that “friending” a litigant or using deceptive practices to gain private access is extremely risky and could result in discipline. The issue of spoliation of evidence in this context, an issue recently addressed by the District of New Jersey in Katiroll Company, Inc. was also addressed by the panel.

Before wrapping up this important roadmap to the ever increasing e-discovery issues faced by litigants and their counsel, the panel discussed and examined the challenges faced by the court with the advancements in technology and the Internet. As we are all aware, gone are the days when it took considerable time to learn about an important event or to research an issue. With the advent of smart phone devices and websites like Wikipedia, information about virtually everything is at one’s fingertips. Although extremely useful and beneficial in every day life, such instant access to information has been detrimental, at times, to the efficient administration of the law. The final hypothetical of the segment brought this very point to light when the distinguished attendees were asked to analyze what a juror did wrong when he decided to perform some research on Wikipedia regarding a critical fact of the case and then printed it out for review by his fellow jurors.

It is clear that the creation and storage of electronic data and the utilization of social media is here to stay with new advancements everyday. With these advancements, however, come new disputes and more intervention by lawyers and the courts to develop and manage methods to best keep up. It is clear that the landscape of e-discovery protocol is still unsettled with changes in methodology and philosophy popping up at a rapid pace. As the overview panel discussion made it equally clear, Gibbons is at the forefront in this area of the law and continues to strive to stay ahead for the benefit of its clients and those who may need assistance in the future.

The PowerPoint presentation that was used for this panel discussion can be found here.

Robert D. Brown, Jr. is an Associate on the Gibbons E-Discovery Task Force.

Tags: Case Summaries, Compliance, Data Management, Data Preservation, Email Management, Ethical Concerns, Facebook, Hold Triggers, Inadvertent Disclosure, Inadvertent Production, Internet, Legal Decisions & Court Rules, Litigation Hold, Litigation Preparedness & Strategies, MySpace, Pension Committee, Sanctions, Social Media, Spoliation

Posted on September 21, 2011 by Paul A. Saso

FINRA Issues Regulatory Notice 11-39: Social Media Websites and the Use of Personal Devices for Business Communications

In August 2011, FINRA, the self-regulatory agency of the securities industry, issued Regulatory Notice 11-39, offering additional guidance concerning the use of social media and supplementing its first notice on the subject—Regulatory Notice 10-06, issued in January 2010. Notice 11-39 focuses on issues relating to FINRA members’ use of social media, including record-keeping, supervision and responding to third-party posts and links. The Notice includes 14 “Q&As,” which provide instruction on the practical application of a firm’s and “associated person’s” (i.e., FINRA members) obligations under applicable laws and regulations when it comes to social media. With respect to record-keeping requirements, social media websites raise new complications because member firms do not themselves typically sponsor or host the content on those websites. The Notice, however, clarifies that record retention requirements continue to apply to content on social media sites and that the controlling question is whether the communications on those sites relate to the firm’s “business as such.” Any business communication made via Facebook, for example, must be “retained, retrievable and supervised.”

Firms are also required to supervise the content of associated persons’ social media websites, including conducting “appropriate training and education concerning [the firm’s] policies,” and must follow up on “‘red flags’ that may indicate that an associated person is not complying with firm policies.” The Notice states that many firms have chosen to require associated persons to certify on an annual (or more frequent) basis that they are complying with firm policies and perform spot checks on associated persons’ social media sites to monitor compliance. (An earlier post on Gibbons E-Discovery Law Alert addressing social media policies generally can be found here.)

Third-party posts and links on social media sites raise additional concerns for FINRA members. The Notice provides that associated persons may respond to a third-party’s business-related inquiry on a personal social media site, such as a question about a particular security, as long as the response does not violate the firm’s policies concerning such communications and the firm takes appropriate steps to retain that communication. According to the Notice, many firms require associated persons to provide only a non-substantive response on the social media site, directing the person with an inquiry to firm-approved communication channels, such as the firm’s email system.

In sum, Notice 11-39 does not alter the existing rules concerning communications between member firms and associated persons on the one hand, and their clients and the general public on the other, but serves to acknowledge the difficulties in applying the traditional rules in the social media context. The Notice recognizes that the general rules regarding firms’ supervision and retention of business-related communications are complicated where certain communications no longer take place in hard copy or even on firm-provided devices or websites, but seeks to instruct members that these rules apply nonetheless and provides guidance on how members can continue to comply.

Paul A. Saso is an Associate on the Gibbons E-Discovery Task Force.

Tags: Compliance, Corporate Information & Records Management Policies, FINRA, Facebook, LinkedIn, MySpace, Social Media, Twitter

Posted on August 25, 2011 by Jennifer Marino Thibodaux

So You Want to Be "Friends?" Why Attorneys Should Think Twice About "Friending" Represented Parties or Witnesses on Facebook

So you, as an attorney, want to be Facebook “friends” with an unrepresented party or witness? Well, what is your motivation? If you practice in California and want to use the private information in furtherance of your client’s case, think again because doing so may violate ethical rules and constitute engaging in “impermissible deception.”

On May 24, 2011, a committee of the San Diego County Bar Association (“Committee”) concluded that sending Facebook “Friend” requests to represented parties, such as high-ranking employees of a defendant-employer in a wrongful discharge matter, constitutes an ethical violation for two reasons. See SDCBA Legal Ethics Opinion 2011-2 (“Op. 2011-2”). First, such a request runs afoul of the California Rule of Professional Conduct that prohibits ex parte communications between an attorney and a represented party. Second, when an attorney communicates only his or her name and nothing more while attempting to access private information for purposes of advancing a client’s case, that conduct constitutes “impermissible deception.” See id. at 11-13.

The Committee explained that the fundamental inquiry is whether the Friend request to “the represented party is motivated by the quest for information ‘about the subject of the representation,’” and if so, then the Friend request is “‘about the subject matter of that representation,’” in violation of the ethical rules. Op. 2011-2 at 3 (citing to California Rule of Professional Conduct 2-100); see also ABA Model Rule 4.2 (same); New Jersey Rule of Professional Conduct 4.2 (same). Notably, in concluding that the motive was to seek information for use in the litigation, the Committee compared the Friend request in “the virtual world” to an attorney’s similar information request from the represented party in “the real world.” Id. (For recent articles from this posting’s authors emphasizing why attorneys should compare the ethical implications of “real world” and “virtual world” scenarios in the social networking context, click here and here).

In rendering its decision, the Committee considered, but rejected, several “objections” to the prohibition:

First, the Committee rejected the argument that the Friend request was not “about the subject of the representation” because it did not refer to the relevant issues, reasoning that “the subject of the representation need not be directly referenced in the query for the query to be ‘about,’ or concerning, the subject of the representation.” Op. 2011-2 at 5.

Second, the Committee disagreed with the contention that seeking access to restricted information on a Facebook page (access to which requires the member’s permission) is the same as accessing the opposing party’s public website or other public information in cyberspace (for which no permission is needed), because the attorney’s motivation is the same. Id. at 6.

Third, the Committee rejected the blanket argument that the attorney-client privilege does not protect the contents of a Facebook page. The Committee reasoned that the privilege aims to encourage parties “to share freely” with their attorneys, and by way of comparison, the prohibition on ex parte communications seeks to avoid “disrupting the trust essential to the attorney-client relationship.” Id. at 8.

Fourth, the Committee rejected the argument that a recent Ninth Circuit opinion held that an attorney does not engage in deceptive practices when he obtains damaging information from a represented party. See U.S. v. Carona, 630 F.3d 917 (9th Cir. 2011). The Committee distinguished this recent opinion because it addressed the exclusion of evidence or “evidentiary consequences” -- rather than a disciplinary proceeding -- and the attorney had not made “direct contact” with the represented party as he would with the Friend request. Op. 2011-2 at 9.

In sum, even though “[s]ocial media sites have opened a broad highway on which users may post their most private personal information,” id., attorneys should continue to act reasonably, proceed with caution, and consider analogous non-cyberspace situations when they engage in electronic sleuthing of a represented party and even witnesses. Otherwise, they risk repercussions for entering this ethical minefield.

Jennifer Marino Thibodaux, is an Associate in the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovert Task Force.

Tags: Attorney Client Privilege, Ethical Concerns, Facebook, Litigation Preparedness & Strategies

Posted on August 8, 2011 by Gibbons P.C.

How a "Stink Bomb" E-Mail and Its Proof That Facebook Pictures Were Deleted Might Have Blown Up a $10.6 Million Verdict

Parties in all types of cases often post pictures and messages on Facebook that might be detrimental to their cases. After his wife died tragically in an automobile accident, and he brought a wrongful death case, Isaiah Lester did just that when he posted a photo of himself wearing an “I [love] hot moms” t-shirt and garter belt on his head while he had a beer in hand. That was his first bad choice.

The defense attorneys, who represented the driver of the vehicle and his employer, saw the picture and requested similar pictures and screen shots from Lester’s Facebook account. The next day, Lester’s attorney, Matthew B. Murray (who is the Virginia Trial Lawyers Association’s immediate past-president), allegedly instructed his paralegal to advise Lester to delete some Facebook pictures. Lester, however, purportedly informed Murray that he had deleted his Facebook account. Clearly, these actions reflect additional unwise decisions. Defense attorneys are now challenging the $10.6 million verdict, which may be the state’s largest wrongful death case.

What was even more egregious according to defense counsel, however, was that Murray denied that Lester had a Facebook account on two specific dates on which he in fact did. They further contend that to add insult to injury, Murray denied up until the time of trial that he dictated any alteration of the Facebook account. Defense attorneys also contend that if the misrepresentations made to the court and opposing counsel were not sufficiently disconcerting, that Murray then deliberately withheld evidence, namely, a “stink bomb” e-mail reflecting that indeed, Murray had essentially directed his client to delete pictures from his Facebook page. Lester and Murray were also accused of other improprieties.

Ultimately, defense counsel proposed to the court there possible solutions: (1) dismiss Lester’s claim and enter a verdict in favor of the defendants; (2) throw out Lester’s claim, set aside the verdict and allow a new trial, which would limit Lester’s recovery of damages and prohibit Murray or his firm from representing Lester; or (3) reduce the verdict to $2.2 million or $1.1 million and preclude Lester’s attorney or the firm from collecting any contingent fees. A hearing regarding this issue will be held on September 23, 2011.

Murray has reportedly since retired from the practice of law and resigned from his firm on July 6, 2011. It is unclear if any ethical or disciplinary proceedings will follow. But suffice it to say that while attorneys should advise their clients not to post potentially damning photographs or messages to social media websites, they should be wary of the consequences of advising their clients to delete or alter such information -- particularly when it is the subject of a discovery request. (Click here for information on how to obtain Facebook discovery or preserve postings/pages through Facebook’s “Download Your Information” feature.) Indeed, that may be an obvious and prudent course of action for most attorneys. At least one attorney, however, failed to answer the clue phone on that issue.

Tags: Facebook, Legal Decisions & Court Rules, Sanctions, Social Media, Spoliation

Posted on May 11, 2011 by Patrick V. DiDomenico

How Useful is Facebook's "Download Your Information" Feature in E-Discovery?

In October 2010, Facebook announced a new Download Your Information (“DYI”) feature, billed as “an easy way to quickly download to your computer everything you've ever posted on Facebook and all your correspondences with friends: your messages, wall posts, photos, status updates and profile information.” The Facebook announcement included a short video detailing how to use the feature. Cnet TV has a more in-depth video. Craig Ball also wrote an article about this feature in the February 23, 2011 issue of Law Technology News.

Introduction

The DYI feature is potentially useful to attorneys in at least two ways: preservation of their client’s electronically stored information (“ESI”) and discovery of an adversary’s ESI. If your matter involves an issue that will likely require your client to produce evidence from his or her Facebook account, it may be advisable for your client to preserve the evidence by downloading his or her Facebook information. It is generally better to err on the side of preservation than to risk the possible penalties of not preserving evidence. Read more about the risks of failing to preserve ESI here. Similarly, if you think that your adversary’s Facebook account contains ESI that may be relevant to the prosecution or defense of a claim, then it may be wise to demand that the adversary preserve that information by using the DYI feature and produce the downloaded files. But, how effective is the DYI feature as a discovery tool? And, is there any way to be sure that the adversary is not hiding any information?

Testing the DYI Feature as an E-Discovery Tool

The DYI feature rolled out to more than 500 million Facebook users over the span of a number of months. When it finally hit my account, I decided to test it out to determine its usefulness as an e-discovery tool. Being a bit of a cynic, my main concern was whether the feature archives deleted content in the event that an unscrupulous adversary intentionally deletes relevant Facebook information. Will the DYI feature uncover the deleted content? I decided to investigate.

The Approach: 1. Download, 2. Delete, 3. Re-download, 4. Compare

Step 1: I initiated the download of my Facebook information. The procedure is easy: navigate to the “Account Settings” (a.k.a. “My Account”) page from the Account drop-down menu. Then, click the “learn more” link next to “Download Your Information.” Click the green Download button, and you will receive a message advising that you will receive an email when your archive is ready to be downloaded. Once Facebook has collected your data, click the link in the email to begin the download. You will receive a condensed (.zip) file containing your photos, wall posts, events, messages, friends list, and profile information.

Step 2: After downloading my data, I deleted from my Facebook profile the following: an email message, some wall posts, comments, photos, and even a friend (not a close friend).

Step 3: Four days later, I re-downloaded my Facebook information to compare the downloaded files with the current data in my profile. It should be noted that I actually re-downloaded my information every day for four days, but only the fourth day’s download file was different than the first day’s file. In other words, Facebook did not take a fresh snapshot of my account every day - it just re-downloaded the same file three days in a row. It is unclear how often Facebook actually takes a new snapshot of a profile.

Step 4: Compare the downloaded files. Except for one email message, all of the Facebook data that I deleted between the first and last DYI files were absent from the last download file. Bothered by the email anomaly, I repeated the process and found that on the second time around, the email message disappeared from the last download file.

Conclusion

According to my test, the Facebook DYI feature gathers a user’s information as it appears in their Facebook account at the time of the initiation of the procedure. The feature does not appear to “look back” and recover deleted information in the user’s account. Thus, if a Facebook user deletes account information prior to initiating the DYI procedure, that deleted information will not appear in the downloaded file. Furthermore, the downloaded file contains no indication that data was deleted.

Based on these findings, it is inadvisable for lawyers to rely solely on the Download Your Information feature for discovery of an adversary’s Facebook information. The feature gives no assurance that a litigant’s attempt to delete evidence will be revealed. Obtaining the data directly from Facebook, for example, via subpoena, may be a better approach. The question remains, of course, whether the data produced by Facebook will include user-deleted data. According to Facebook’s Privacy Policy, “deleted information may persist in backup copies for up to 90 days,” so there is a possibility that subpoenaed data will, in fact, include relevant information.

Patrick V. DiDomenico is the Chief Knowledge Officer at Gibbons and a member of the Gibbons E-Discovery Task Force.

Tags: Archive, Cnet, Computer Systems, Data Preservation, Data Recovery, Deleted Data Recovery, E-Data, ESI, Facebook, Internet, Law Technology News, Litigation Preparedness & Strategies, Production, Social Media, Technology Developments & Issues

Posted on April 4, 2011 by Stephen J. Finley, Jr.

Courts Rely Upon Jury Instructions to Discourage Juror Use of Social Media and Electronic Devices

The explosion of social media and the universal availability of electronic devices have presented a host of courtroom issues the judicial system must address, ranging from substantive legal questions like the admissibility of Facebook accounts and Twitter postings, to more ministerial issues such as the extent to which electronic devices may be utilized by counsel in the courtroom. While different courts have reached varied conclusions on these questions, courts have uniformly rejected any attempt by jurors to use technology to research a case or to post information about a case to social media sites, and increasingly use pre-trial and post-closing jury instructions.

The Judicial Conference of the United States has endorsed proposed model jury instructions aimed at advancing two goals:

Preventing jurors from independently researching a case, including through the internet or other electronic means; and
Preventing jurors from communicating about the case, including by electronic means such as e-mail or Facebook.

In addition to the model instructions drafted by the Federal Judicial Conference, several states, including New York and California, have adopted their own instructions to admonish the use of social media and electronic devices to research a case. Courts are beginning to employ these instructions.

Best practices for handling social media at trial requires certain diligence. Counsel should evaluate the risk of juror use of social media and electronic research as part of effective trial preparation. Counsel should identify what information is publicly available and evaluate whether to address it at trial, anticipating that a juror may ignore the court’s instruction to refrain from electronic sleuthing. Counsel should further insist that the jury be properly instructed on the use of electronic devices and social media prior to the start of trial, and again prior to deliberations. Counsel may also request that the court remind jurors of their obligations at appropriate intervals during trial and deliberations. To the extent permissible, counsel may also wish to monitor jurors’ social media accounts to ensure that the panel is complying with the court’s instructions.

Additional discussion on this topic can be found here.

Stephen J. Finley, Jr. is an Associate on the Gibbons E-Discovery Task Force.

Tags: Facebook, Jury Instructions, Legal Decisions & Court Rules, Litigation Preparedness & Strategies, Litigation Readiness, Social Media, Twitter

Posted on March 28, 2011 by Stephen J. Finley, Jr.

Show Me The Evidence - Use of Social Media Information at Trial

A defendant in an employment action discovers through Facebook that a plaintiff has lied about her discrimination claim. The information essentially undermines plaintiff’s entire claim. However, such information does not make it to a factfinder at trial unless the evidentiary foundations can be established -- proof of authorship and timeliness. These evidentiary foundations are not easy to establish in the ever-changing medium of social media. The anonymity offered by some social networking sites may be what makes them attractive to users, but it also makes establishing authorship of content difficult. Similarly, social media sites are constantly changing, as users can add, remove or edit content at any time. As a result, recreating a post or a profile from a particular moment in time can be difficult, if not impossible, depending on how a partciluar site functions.

In discovery, not only should litigants work to identify relevant social media, counsel should also seek to discover the facts that will be necessary to introduce social media evidence at trial. This includes information that may establish authorship, such as nicknames used by a party which may mirror an online profile, the identity of users who have viewed or commented on social media content and information relating to the inner-workings of a social media site. This information will aid in authenticating social media evidence and ensuring its admission into evidence.

At trial, the rules of evidence will determine whether electronic evidence, including social media, is admissible. In the federal courts, Federal Rule of Evidence 901 controls authentication of evidence. Rule 901 clearly places the burden of authentication on the proponent of the evidence. To satisfy Rule 901’s requirement that a document is what its proponent says it is, authorship and timeliness of social media content must be confirmed. Authorship may be established by testimony from the author or recipient, or other evidence which helps to confirm authorship, such as testimony that an individual’s commonly used nickname matches the name asociated with the online profile which authored the content. To confirm timeliness, data from a social media site may be available to confirm when information was posted and/or viewed. If data is not available from a site, witness testimony may be sufficient to confirm the time when social media content was published or viewed, although establishing timeliness may prove difficult.

As use of social media proliferates, courts will increasingly need to resolve challenges to the admissibility of social media. While the use of certain social media, like Facebook and MySpace, may already be familiar to courts, the ever-evolving nature of social media sites and applications make it difficult (if not impossible) to promulgate hard and fast evidentiary rules. Rather, the application of evidentiary rules to social media must remain flexible and fluid to ensure that relevant and critical information is available to the factfinder.

Stephen J. Finley, Jr. is an Associate on the Gibbons E-Discovery Task Force.

Tags: Admissibility, Authentication, Facebook, Litigation Preparedness & Strategies, MySpace, Social Media

Posted on February 14, 2011 by Suzanne Herrmann Brock

Court Finds Pictures Downloaded from MySpace Inadmissible

Obtaining data and images from social networking sites (“SNS”) such as Facebook, LinkedIn and MySpace has become commonplace in civil and criminal litigation. However, issues surrounding proper authentication of this information at trial remain unresolved. The New York Supreme Court’s recent opinion in People v. Karon Lenihan, 1714/2008 (Sup. Ct., Queens Cty. Nov. 12, 2010)highlights judicial skepticism surrounding the use of SNS evidence.

Karon Lenihan was convicted of second degree murder for shooting Patrick Hernandez. Before trial, Lenihan’s attorney requested, in limine, a ruling as to whether he could cross-examine two of the People’s witnesses about their alleged gang membership by using pictures Lenihan’s mother downloaded from MySpace four days after the shooting. Lenihan alleged the photographs showed the witnesses making hand signs and wearing clothing that signified an affiliation with the Crips gang, and that the witnesses’ gang affiliation was a possible motive for them to fabricate their story and frame Lenihan. The court denied Lenihan’s motion and affirmed its decision in a written opinion on Lenihan’s post trial motion to set aside the verdict. The judge set forth several grounds for barring the pictures downloaded from MySpace, including questions regarding authenticity. Specifically, the Court held as follows:

In light of the ability to ‘photo shop,’ edit photographs on the computer, defendant could not authenticate the photographs.

The court also noted that the Lenihan did not know who took the photographs or who posted them to MySpace.

Based on the court’s ruling in Lenihan, it would be difficult for a party to authenticate a photograph or image downloaded from a SNS without first obtaining a statement or affidavit from an individual with personal knowledge as to when the original photograph was taken and that the downloaded photograph is an accurate representation of the original. However, not all courts that have addressed this issue have imposed such an onerous burden to authenticate SNS and website images. For example, in Toytrackerz LLC v. Koehler, Case No. 08-2297 (GLR), 2009 WL 2591329 (D. Kan. Aug. 21, 2009) the court noted that an image printed from a website could be authenticated by testimony from the person who printed the image that the image “accurately reflects the content of the website and the image of the page on the computer at which the printout was made.” Likewise, in kSolo, Inc. v. Catona, Case Nos. 07-5213, 08-1801 (CAS) (AGRx), 2008 WL 4906115, n.5 (C.D. Cal Nov. 10, 2008), the court admitted screenshots from a website that were accompanied by a declaration from the individual who created the screenshots attesting that the “screenshots are an accurate representation of what he encountered upon visiting the website.” Thus, litigants who intend to use SNS images in support of their case should be mindful that case law regarding the authentication of SNS images is not settled and continues to evolve.

Further discussion of the admissibility of website images can be found here.

Suzanne Herrmann Brock is an Associate on the Gibbons E-Discovery Task Force.

Tags: Admissibility, Facebook, Internet, Legal Decisions & Court Rules, LinkedIn, MySpace, Social Media

Posted on January 31, 2011 by Robert D. Brown, Jr.

New York's Appellate Division Finds Facebook Accounts Off-Limits When Discovery Demands are Non-Specific

In McCann v. Harleysville Insurance Co. of New York, 910 N.Y.S.2d 614, 2010 N.Y. App. Div. LEXIS 8396 (N.Y. App. Div. Nov. 12, 2010), New York’s Appellate Division, Fourth Department affirmed the trial court’s refusal to compel Plaintiff to produce information regarding or provide access to her Facebook account. Plaintiff was injured in an auto accident with one of Harleysville’s insured. She filed a personal injury suit against the insured, which resulted in a settlement. Plaintiff thereafter commenced a new action directly against Harleysville for certain uninsured/underinsured auto insurance benefits.

During discovery, Harleysville sought disclosure of photographs from Plaintiff and an authorization for access to her Facebook account. Upon Plaintiff’s refusal, Harleysville moved to compel disclosure of Plaintiff’s Facebook account information. Harleysville argued that the information sought was relevant to whether McCann suffered a serious injury in the accident without specifying why. The trial court disagreed, finding that Harleysville’s request was “overly broad,” but noted that the denial was without prejudice “to service of new, proper discovery demands.” Harleysville then made a second request for access to Plaintiff’s Facebook account, which the Fourth Department noted specified the type of evidence Harleysville sought. Plaintiff again refused to disclose her Facebook account information and Harleysville again moved to compel. The trial court again denied the motion, finding that Harleysville failed to establish the relevancy of the evidence sought, and further granted Plaintiff’s cross-motion for a protective order.

On appeal by Harleysville, the Fourth Department, in a succinct opinion, held that the trial court properly denied Harleysville’s two motions to compel. The Court likened Harleysville’s motions to a request for permission to conduct a “fishing expedition” into Plaintiff’s Facebook account in hopes of finding relevant evidence. It disagreed, however, with the trial court’s entry of a protective order, determining that Harleysville should be allowed to seek disclosure of Plaintiff’s Facebook account in the future.

The McCann decision is consistent with Romano v. Steelcase Inc., 2010 N.Y. Slip Op. 20388, 2010 N.Y. Misc. LEXIS 4538 (N.Y. Sup. Ct. Sept. 21, 2010) and McMillen v. Hummingbird Speedway, Inc., Case No. 113-2010 CD, 2010 WL 4403285 (Pa. Ct. of Com. Pl. Sept. 9, 2010), which were previously discussed here and here. Implicit in all three decisions is that non-public communications and information found on social networking websites will not be protected from disclosure when it is properly demonstrated that the sought-after information is relevant to the litigation. As was previously discussed here, publicly accessible information on such sites has already been found to be discoverable. Unlike the boilerplate and catch-all discovery requests in personal injury actions, requests for access to a litigant’s Facebook or other social networking account must be specifically tailored and, if possible, tied to actual facts or information found on the public portions of a litigant’s account.

Robert D. Brown, Jr. is an Associate on the Gibbons E-Discovery Task Force.

Tags: Facebook, Legal Decisions & Court Rules, LinkedIn, MySpace, Production, Social Media, Twitter

Posted on December 6, 2010 by Jennifer Marino Thibodaux

N.J. Judge Dismisses Potential Juror for Attempting to "Friend" Defendant on Facebook

As recently reported by The Press of Atlantic City, on November 4, 2010, the Honorable Raymond Batten, J.S.C., dismissed a potential juror after defense counsel advised that the juror attempted to “friend” his client on Facebook. The potential juror was dismissed from serving in the trial of Atlantic City Councilman Marty Small, LuQuay Zahir and ten others who are accused of voter fraud during the councilman’s unsuccessful bid for mayor in 2009.

When jury selection began, Judge Batten instructed all potential jurors that they were prohibited from contacting the lawyers or defendants in the case. Notwithstanding that instruction, on November 4, 2010, Defendant Zahir advised his counsel, Michael Schreiber, that he received a “friend” request from a woman in the jury pool at the end of a break. Counsel advised Zahir not to respond and promptly brought the issue to Judge Batten’s attention. Further investigation revealed that Defendant Zahir and the potential juror had 93 friends in common on Facebook and that the site suggests that users “friend” each other when they have common “friends.” Judge Batten confronted the juror about her improper communications with Defendant Zahir and advised the juror to remain silent until she had the opportunity to consult with an attorney. To date, it is unknown whether she will face any criminal charges for the “friending” request.

Despite Judge Batten’s repeated instructions to the potential jurors regarding the prohibition on communications with defendants and counsel, the juror at issue obviously did not understand the extent of the prohibition. To avoid any ambiguity, jury instructions should specifically state that electronic communications such as e-mail, text messages and contacts through social networking sites are strictly prohibited.

Jennifer Marino Thibodaux is an Associate in the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.

Tags: Criminal Cases, Ethical Concerns, Facebook, Instructions to Potential Jurors, Jury Selection, Legal Decisions & Court Rules

Posted on November 29, 2010 by Robert D. Brown, Jr.

No Privilege for Information Posted on Social Network Sites -- Court Orders Production of Plaintiff's Social Network Account Usernames and Passwords

A Pennsylvania Court of Common Pleas has ordered the production of a plaintiff’s social network account passwords and usernames in the recent decision of McMillen v. Hummingbird Speedway, Inc., Case No. 113-2010 CD (Pa. Ct. of Common Pleas, Jefferson Cty. September 9, 2010) In this case, McMillen sued Hummingbird Speedway Inc. and others for injuries he allegedly suffered when he was rear-ended during a cool down lap after a stock car race in 2007 on Hummingbird’s premises. During discovery, Hummingbird requested that plaintiff disclose information regarding social network websites that plaintiff belonged to and asked that plaintiff turn over his log-in and passwords for his accounts. McMillen responded that he had accounts on Facebook and MySpace but objected to any request for his log-in and passwords on the basis that the requested information was privileged and would lead to the production of private communications. Ultimately, Hummingbird filed a motion to compel the production of the requested information as they wanted “to determine whether or not plaintiff has made any other comments which impeach and contradict his disability and damages claims.” The court found that such information is not protected by any evidentiary privileges under Pennsylvania law and thus, is discoverable. Read the entire decision here.

In deciding Hummingbird’s motion to compel, the court first analyzed whether the requested information was even discoverable under Pennsylvania’s discovery rules. The court concluded that, based on Pennsylvania’s broad discovery rules, as long as the information requested is relevant to the litigation, whether directly or peripherally, a party may obtain discovery regarding any unprivileged matter. The court further explained that “as a practical matter, that means that nearly any relevant materials are discoverable, because this Commonwealth recognizes only a limited number of privileges.” The court did not offer any discussion as to whether the information requested by Hummingbird Speedway was actually relevant to the litigation and simply moved on to the more pressing issue -- privilege.

The court handily dealt with McMillen’s argument that his social network account information and the communications made on these sites were of the nature that warranted protection of an evidentiary privilege. After reviewing the relevant policies on Facebook and MySpace, the court found that any expectation of privacy when engaged in communications on such sites was unrealistic. Finding that Pennsylvania did not recognize a privilege for social network communications, the court ordered production of plaintiff’s account information within 15 days to defendants’ counsel. The court further instructed that plaintiff was not to take steps to delete or alter the existing information on his social network accounts.

As recently seen in Romano v. Steelcase Inc., 2010 N.Y. Slip Op. 20388, 2010 N.Y. Misc. LEXIS 4538 (N.Y. Sup. Ct., Suffolk Cty. Sept. 21, 2010) and now in McMillen, a trend is evolving where communications made on social networking websites, indiscrete or otherwise, will not be protected under the shroud of privacy or privilege when it argued that such communications are relevant to a litigation. As the McMillen court reasoned, allowing access to social network sites primarily to gain assistance in proving the truth or falsity of any claim clearly outweighs the relational harm that may be realized by social network computer site users. McMillen is just another reminder that the ability to ascertain the truth is now extended to cyberspace, and communications made on social network sites, however made, can prove damaging to a litigation. Based upon the court’s ruling in McMillen, would-be litigants, at least in personal injury actions, should now heed the advice “think before you speak, or in this case, before you type” for fear of undermining the strength of the case or defense.

Additional discussions on this topic from members of the Gibbons Employment Law Department and the E-Discovery Task Force can be found here and here.

Robert D. Brown, Jr. is an Associate on the Gibbons E-Discovery Task Force.

Tags: Facebook, Legal Decisions & Court Rules, MySpace, Production, Social Media

Posted on November 23, 2010 by Gibbons P.C.

Employer Social Media Policies: The Dangers of Too Much Or Not Enough

Employers wanting to prohibit damaging communications from being made about them by employees through blogging and rapidly evolving social media such as Facebook, Twitter, and LinkedIn should be aware of a recent National Labor Relations Board (NLRB) Complaint against American Medical Response of Connecticut, Inc. asserting that two of the more common employer restrictions on employee blogging and social media communications constitute unfair labor practices and are, therefore, unlawful. In its News Release, the NLRB pointed to two of the provisions in the company’s blogging and internet posting policies as being unlawful under Section 7 of the National Labor Relations Act (NLRA):

“one that prohibited employees from making disparaging remarks when discussing the company or supervisors;”
“and another that prohibited employees from depicting the company in any way over the internet without company permission.”

This position, which emanates from the NLRB’s Office of the General Counsel, seems to differ from a December 2009 Advisory Memorandum from the NLRB General Counsel’s Division of Advice that found lawful the social media policy of Sears, Roebuck and Co. prohibiting, among other things, “[d]isparagement of company’s . . . products, services, executive leadership, employees, strategy, and business products.”

Although a union precipitated the recent Complaint and the individual who was terminated for her Facebook postings was a union member, the NLRB could easily make the same assertions against employers when there is no union involvement, because Section 7 of the NLRA protects employees’ rights to engage, not only in union-related activity, but also in “other concerted activities for the purpose of . . . mutual aid or protection.” Anecdotally, it seems that far too many non-unionized employers have either been unaware or apt to downplay the significance of this aspect of the NLRA.

Perhaps the resolution of this case will clarify at least some of the many uncertainties regarding the practical effects of Section 7 and other statutes and legal doctrines on employers’ abilities to restrict the social-media activities of employees. Definitive clarity, however, is not likely anytime soon for reasons such as:

the rapidly changing nature of electronic communications (who foresaw phenomena like Facebook and Twitter not so long ago?);
what allowance, if any, will be made for the quantitative and qualitative differences between electronic posts that are viewed and forwarded almost instantaneously by numerous strangers — possibly millions — worldwide and traditional small-group activities such as face-to-face conversations and picketing; and
the effects of political changes on institutions such as the NLRB, within which there appear to be differences of opinion as illustrated by the contrast between the December 2009 Advisory Memorandum and recent Complaint.

This is not to say that the best course is for an employer to view this shifting landscape as an excuse to do nothing to deter individuals it is paying wages (presumably in exchange for expected positive contributions) from biting in a very damaging way the hand that feeds. To the contrary, these developments underscore the dangers not only of drafting and enforcing policies without sufficient attention to Section 7, but also of inaction.

Tags: Electronic Communications, Facebook, Litigation Preparedness & Strategies, NLRA, Off Duty Conduct, Policies/Handbooks, Social Media

Posted on October 25, 2010 by Robert D. Brown, Jr.

Accessing an Adversary's Public Social Networking Information -- N.Y. Professional Ethics Opinion 843

Facebook, Twitter, LinkedIn and MySpace are among the top social media websites that have culturally transformed electronic communications and social interactions. Inevitably, these platforms have also affected litigation practice and present myriad ethical dilemmas. One such dilemma is whether an attorney can access an adverse party’s social networking website to obtain information about the party, including impeachment material.

In Professional Ethics Opinion 843, issued on September 10, 2010, the New York State Bar Association's Committee on Professional Ethics concluded that an attorney representing a party in pending litigation may access the public pages of another party's social networking website to obtain publicly available information about that party. The Committee observed that some social networking websites and/or users do not require pre-approval or consent to access member profiles, and thus the profiles are accessible to all members. While the Committee found that such information on social networking websites is akin to publicly accessible online or print media, it also made clear that there are limitations to the attorney’s conduct on social networking sites:

An attorney cannot “friend” or otherwise make contact with the party. Such conduct would fall within the purview of Rule 4.2 of the New York Rules of Professional Conduct (“Rules”), which prohibits a lawyer from communicating with the represented party about the subject of the representation absent prior consent from the represented party’s lawyer.

An attorney cannot employ a third party to “friend” the party. Such conduct would fall within the purview of Rule 8.4(c), which prohibits a lawyer from engaging in conduct involving “dishonesty, fraud, deceit or mispresentation;” Rule 4.1, which prohibits lawyers from making false statements of fact or law to a third person; and Rule 5.3(b)(1), which holds an attorney responsible for the conduct of employed non-attorneys who violated the Rules.

In short, the rule is you may look, but do not “friend.”

Robert D. Brown, Jr. is an Associate on the Gibbons E-Discovery Task Force.

Tags: Attorney Work Product, Ethical Concerns, Facebook, Internet, LinkedIn, Litigation Preparedness & Strategies, MySpace, Social Media, Twitter

Posted on October 11, 2010 by Melissa DeHonney

"Private" Facebook and MySpace Postings are Discoverable

A New York trial court has ordered a personal injury plaintiff to produce her Facebook and MySpace postings, notwithstanding that plaintiff self-designated them as private. Justice Jeffrey Arlen Spinner, in Romano v. Steelcase Inc., 2010 N.Y. Slip Op. 20388, 2010 N.Y. Misc. LEXIS 4538 (N.Y. Sup. Ct., Suffolk Cty. Sept. 21, 2010), reasoned that New York’s "liberal discovery policies" favored allowing access to posts that might undermine plaintiff's claim for loss of enjoyment of life and further that, "as neither Facebook nor MySpace guarantee complete privacy, Plaintiff has no legitimate reasonable expectation of privacy." Read the decision here.

The Romano opinion suggests that, if a discovering party makes a threshold showing that content posted on social media websites is relevant, discovery may be had: "In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action." As with traditional modes of discovery, it appears that "fishing expeditions" will not be allowed.

Most of the cases the Romano court cited where access to social media was granted were likewise personal injury actions in which the individual plaintiffs were ordered to produce their online journals. Still, the opinion signals to businesses that they, too, might have to produce content posted on social media sites. With more and more businesses promoting themselves through this medium, the attendant preservation obligations should be considered. Posting potentially discoverable information with third-parties can complicate compliance.

For the same reason, businesses should be mindful of what their employees post on social networking sites. An employee’s postings may be deemed to reflect on the company and might even bear on matters relevant to a lawsuit in which the company is a party. All too often, what people say online is as candid as what they might say to a few close co-workers behind closed doors. Yet, online posts are available for the world to see. Even seemingly innocuous posts -- for example, "I was in way over my head today at work" -- can prove damaging in litigation. The most prudent approach would include both restricting employees' access to these sites at the office and implementing a social media policy addressing employees' online postings.

Additional discussions on this topic from members of the Gibbons Employment Law Department and the E-Discovery Task Force can be found here and here.

Melissa DeHonney is an Associate on the Gibbons E-Discovery Task Force.

Tags: Data Preservation, ESI, Employee Training, Facebook, Legal Decisions & Court Rules, MySpace, Social Media

E-Discovery Law Alert

Gibbons P.C.

gibbonslaw.com

Newark
New York
Philadelphia
Trenton
Wilmington

E-Discovery Law Alert : New York & New Jersey Attorneys for Electronic Discovery and Corporate Information Management Law

Published By
Gibbons

Developments in electronic discovery and corporate information management

Federal Judge in New Jersey Issues Adverse Inference Instruction Due to Plaintiff's Failure to Preserve Facebook Information in Personal Injury Action

Magistrate Judge Orders Production of Social Media Discovery But Fashions Novel Protocol Designed to Protect Privacy Concerns

Netflix Case Illustrates Potential Social Media Pitfalls Facing Public Companies

No Fishing Expeditions Allowed When It Comes to Discovery of Social Media

Changing the "Games": The First Social Media Olympics

Attorneys' Use of Social Media to Research Jurors -- Another Ethical Land Mine

Still No Cure for the Malady of Jurors' Social Media Use During Trials and Deliberations

Lester v. Allied Part 2: "Clean Up" of Compromising Social Media Evidence Can Result in Severe Sanctions

Ooops, They Did it Again -- Jurors Continue to Improperly Use the Internet, and Courts Struggle with Solutions

In re Facebook Privacy Litigation - Uphill Battle for Plaintiffs

The Fifth Annual Gibbons E-Discovery Conference Kicks Off with an Interactive and Thought-Provoking Overview of the Past Year's Pivotal E-Discovery Case Decisions

FINRA Issues Regulatory Notice 11-39: Social Media Websites and the Use of Personal Devices for Business Communications

So You Want to Be "Friends?" Why Attorneys Should Think Twice About "Friending" Represented Parties or Witnesses on Facebook

How a "Stink Bomb" E-Mail and Its Proof That Facebook Pictures Were Deleted Might Have Blown Up a $10.6 Million Verdict

How Useful is Facebook's "Download Your Information" Feature in E-Discovery?

Courts Rely Upon Jury Instructions to Discourage Juror Use of Social Media and Electronic Devices

Show Me The Evidence - Use of Social Media Information at Trial

Court Finds Pictures Downloaded from MySpace Inadmissible

New York's Appellate Division Finds Facebook Accounts Off-Limits When Discovery Demands are Non-Specific

N.J. Judge Dismisses Potential Juror for Attempting to "Friend" Defendant on Facebook

No Privilege for Information Posted on Social Network Sites -- Court Orders Production of Plaintiff's Social Network Account Usernames and Passwords

Employer Social Media Policies: The Dangers of Too Much Or Not Enough

Accessing an Adversary's Public Social Networking Information -- N.Y. Professional Ethics Opinion 843

"Private" Facebook and MySpace Postings are Discoverable