E-Discovery Law Alert

E-Discovery Law Alert

Developments in Electronic Discovery and Corporate Information Technology

Tag Archives: Social Media

ABA Says that Attorneys May Investigate Jurors’ Social Media Presence, Even if Automatic Notifications are Generated

Posted in Legal Decisions & Court Rules
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently weighed in on the ethical parameters of attorneys’ investigation of jurors’ social media presence. In ABA Formal Opinion 466, the Committee concluded that an attorney may review a juror’s social media presence; an attorney may undertake that review even if the social media website issues a notice to the juror that the attorney viewed his social media profile; and an attorney may not request private access to a juror’s social media profile… Continue Reading

Delaware Adopts Less-Stringent Approach to Authentication of Social Media Evidence: The Jury, and Not the Trial Judge, Ultimately Decides

Posted in General Litigation
In a recent decision, the Delaware Supreme Court held a proponent of social media evidence may authenticate that evidence using the same forms of verification available under Delaware Rule of Evidence 901 to authenticate any other type of evidence, including witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence in question. In Parker v. State of Delaware, Delaware’s high court held that the trial judge may admit a social media post when there is evidence sufficient to support a finding by a reasonable juror that the proffered evidence is what its proponent claims it to be, leaving the jury to decide whether to accept or reject the evidence… Continue Reading

Father’s “Lifestyle” as Portrayed on Internet Causes Dramatic Increase in Child Support Obligations

Posted in Legal Decisions & Court Rules
A recent New Jersey Appellate Division decision in Fitzgerald v. Duff provides a potent reminder that if you are involved in litigation, anything you do or say online might be used against you in court. The Fitzgerald proceedings concerned a father's attempt to modify a previously-entered child support order by submitting his 2011 income tax return, which reported a taxable income of $21,000 from a cash tattoo business. In opposition, the child's legal custodian filed a certification opposing modification of the support order, suggesting that much of the defendant's income was unreported, and that a much higher child support obligation was warranted. To support that position, the custodian submitted copies of defendant's web site, Facebook photographs, and various social media comments evincing his success. The website identified multiple locations at which the tattoo parlor operated and plans for its imminent expansion, featured three staff tattoo artists, and advertised that defendant provided tattoo services for professional football players. The Facebook photographs depicted defendant throwing $100 bills, his speed boat, a 2011 Chevrolet Camaro (plaintiff also maintained defendant owned a Lincoln Navigator), his elaborate tropical wedding, and accompanying diamond engagement and wedding bands. Finally, comments from the father's Myspace page included statements that in four hours he earns $250, his schedule had "been packed so [he could] pay for this wedding," and that he purchased television advertising spots… Continue Reading

NYC Teacher Nearly Loses Job Due to Facebook Comments About Her Students

Posted in Legal Decisions & Court Rules
Recently, a New York City public school teacher nearly lost her job after posting derogatory remarks on her private Facebook page about hating her students, whom she called "devil[']s spawns." Although a hearing officer concluded that her employment should be terminated, the Supreme Court vacated that decision, which a unanimous panel of the Appellate Division affirmed… Continue Reading

Six Gibbons Attorneys to Speak at Upcoming NJSBA 2013 Annual Meeting & Convention

Posted in General Litigation
The New Jersey State Bar Association 2013 Annual Meeting and Convention will be held May 15-17, 2013, at the Borgata Hotel Casino & Spa. Six Gibbons attorneys will be featured as speakers and moderators at this years convention. The Gibbons attorneys, Fruqan Mouzon, Mary Frances Palisano, Damian V. Santomauro, Judge Edwin H. Stern, Jennifer Marino Thibodaux, and Chief Justice James R. Zazzali, will be covering topics ranging from developments in E-Discovery to white collar crime and the Consumer Fraud Act… Continue Reading

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

Posted in Legal Decisions & Court Rules
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… Continue Reading

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

Posted in Legal Decisions & Court Rules
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."… Continue Reading

Netflix Case Illustrates Potential Social Media Pitfalls Facing Public Companies

Posted in Corporate Information & Records Management Policies
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… Continue Reading

Taking Over Former Employee’s LinkedIn Account Not a Violation of Federal Law, According to Pennsylvania District Court

Posted in Legal Decisions & Court Rules
A Pennsylvania Federal District Court has decided that an employer did not violate the Federal Computer Fraud and Abuse Act ("CFAA") or the Federal Lanham Act, when it took control of a departed employee's LinkedIn account. The Court ruled that (1) the CFAA, which in part prohibits unauthorized access to a computer with the intent to defraud, did not come into play and (2) no trademark infringement in violation of the Lanham Act had occurred… Continue Reading

Changing the “Games”: The First Social Media Olympics

Posted in Technology Developments & Issues
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."… Continue Reading

“Did I Just Get a Tweet From Goldman Sachs?!?”: Increased Expansion and Scrutiny of Social Media in the Financial Services Industry

Posted in Corporate Information & Records Management Policies
With the increased use of social media by financial services industry participants, more activity and scrutiny can be expected from financial regulators. This is not to mention the litigation from investors that could arise out of, for example, the misinterpreted or well-meaning post from an advisor that simply did not translate to "less than 140 characters." It appears that there is a trend (amongst at least the larger financial institutions) that a united and pre-approved voice is best for now… Continue Reading

Dancer’s Facebook Messages With Opt-In Class Members are Protected Work Product

Posted in Legal Decisions & Court Rules
A group of exotic dancers in New York recently found themselves partially exposed -- well, their Facebook messages, that is. A federal judge in In re Penthouse Executive Club Compensation Litigation, 10-CV1145 (KMW) (S.D.N.Y May 10, 2012) decided that one of the plaintiff-dancer's Facebook communications with non-party-dancers about joining the lawsuit were not protected from disclosure, but that Facebook communications between the plaintiff-dancer and opt-in plaintiffs were protected from disclosure. The Court's application of the well-established work product doctrine and common interest rule to social media communications reminds lawyers to exercise caution when using social media for discovery purposes and to warn their clients to similarly proceed with caution… Continue Reading

Attorneys’ Use of Social Media to Research Jurors — Another Ethical Land Mine

Posted in Legal Decisions & Court Rules
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… Continue Reading

NLRB’s Third Social Media Report Includes Model Social Media Policy

Posted in Legal Decisions & Court Rules
On May 30, 2012, the National Labor Relations Board's Acting General Counsel issued a third report on social media cases. This report follows the Board's August 2011 and January 2012 reports on the subject, which we previously discussed. The guidance contained in the three social media reports is applicable to most private sector employers, unionized or not… Continue Reading

Social Media in the Securities Industry: Complying with Reg FD

Posted in Corporate Information & Records Management Policies
Delivering non-public material information through Internet-based social media, especially social networking sites such as Facebook, LindedIn, and Twitter, means that this information will first reach only a fraction of the investing public -- those who "follow" the company using those platforms. As illustrated by the hypothetical below, this may create a potential "Reg FD" issue for a public company. As we addressed in a previous blog, the SEC has recently issued guidance to investment advisers concerning their use of social media. We have also addressed in a previous blog that FINRA, too, has issued Regulatory Notices which make it clear that member firms are expected to have policies and procedures in place that cover the use of social media by the firm and its associated persons. While direct guidance to public companies on the use of social media to report a company's material financial matters has yet to issue, this post offers suggestions for avoiding pitfalls in this regard… Continue Reading

Ex-Juror Who “Friended” Defendant Faces Jail for Bragging on Facebook About Dismissal From Jury Duty

Posted in Legal Decisions & Court Rules
By now, attorneys should know to advise their clients to watch out for Friend requests from jurors during a trial. The latest debacle concerning jurors use of social media involves a juror "friending" a party and then bragging about his resulting dismissal from the panel. For that juror, his Facebook antics landed him a three-day jail sentence… Continue Reading

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

Posted in Litigation Preparedness & Strategies
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… Continue Reading

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

Posted in Legal Decisions & Court Rules
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… Continue Reading

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

Posted in Litigation Preparedness & Strategies
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… Continue Reading

Recent Regulatory Guidance from the SEC on the Use of Social Media

Posted in Corporate Information & Records Management Policies
Broker-dealers and investment advisors face a variety of legal and compliance ramifications resulting from the expanding use of social media for business purposes. It is now commonplace that an entity or individual in the securities industry will employ a combination of social media platforms including Facebook, Twitter, YouTube and LinkedIn to market and network with their investors and potential investors. For example, an investment advisory firm may establish its own Facebook page where industry-related information may be posted, an investment advisor may "tweet" investment and wealth management strategies, or a registered representative may present his experience, licensures or his own opinions on trending stocks on his LinkedIn page… Continue Reading

Chief Judge Finds That Alteration of Facebook Page Can Lead to Spoliation Inference

Posted in Legal Decisions & Court Rules
In a trademark infringement case involving two restaurants, Katiroll Company, Inc. v. Kati Roll and Platters, Inc. et al., Plaintiff sought a spoliation inference, alleging various discovery abuses involving several types of evidence including social media. Specifically, Plaintiff requested sanctions for the individual Defendant's failure to preserve his Facebook pages in two different ways. Recognizing that Facebook users change their pages frequently given the nature of the media at issue, Chief Judge Brown of the District of New Jersey crafted a creative remedy, which was based in large part on the level of prejudice to Plaintiff… Continue Reading

The Fifth Annual Gibbons E-Discovery Conference Closes With Helpful Guidance on Drafting Records Management Policies

Posted in Corporate Information & Records Management Policies, Litigation Preparedness & Strategies
An effective and up-to-date set of records management policies may help companies reduce the likelihood of sanctions and other adverse consequences by ensuring records are retained and preserved in accordance with legal requirements, according to Gibbons Director Phillip Duffy; TechLaw Solutions' Northeast Regional Director Michael Landau; and Inventus LLC Senior Consultant Bryan Melchionda… Continue Reading

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

Posted in Legal Decisions & Court Rules, Litigation Preparedness & Strategies
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… Continue Reading