Tagged: Social Media

In It for the Long Haul: The Duty to Preserve Social Media Accounts Is Not Terminated Upon an Initial Production

In It for the Long Haul: The Duty to Preserve Social Media Accounts Is Not Terminated Upon an Initial Production

In a recent decision by a federal district court in Ohio, the court admonished a plaintiff in a gender-based pay discrimination for deactivating her LinkedIn account during the pendency of the litigation after making an initial production. The court concluded that plaintiff had violated her duty to preserve pursuant to Rule 37(e), as the conduct resulted in the deletion of relevant and discoverable information that was the subject of a previous court order. The court declined to impose sanctions because plaintiff had in fact produced data from her LinkedIn account and because defendant could not demonstrate prejudice. However, the court did not let plaintiff’s offense go lightly; the court stated that plaintiff’s action was serious and inappropriate. In Faulkner v. Aero Fulfillment Services, plaintiffs alleged gender-based pay discrimination during their employment with defendant. Pursuant to a court order, plaintiffs had to produce, among other things, the “last three years of social media information.” Plaintiff Faulkner’s counsel followed the directions on the LinkedIn website to download a full data archive in Microsoft Excel format and produced the Excel file to defendant. Subsequently, defense counsel requested the social media information in a different format, a “screenshot” format. But plaintiff’s counsel was unable...

“Private” Facebook Posts Are Discoverable and Should Be Treated as Any Other Source of Discoverable Information

“Private” Facebook Posts Are Discoverable and Should Be Treated as Any Other Source of Discoverable Information

The New York Court of Appeals unanimously ruled in Forman v. Henkin that “private” Facebook posts (i.e., those accessible only to your Facebook “friends,” as opposed to the general public) are discoverable if they meet the common discovery standard—that they are “material and necessary to the prosecution or defense of an action.” In Forman, plaintiff alleged she was severely injured when she fell from defendant’s horse. Plaintiff alleged her injuries impaired her ability to communicate and participate in what she described as the active lifestyle she enjoyed before the accident. Plaintiff alleged she posted on Facebook many photographs that depicted her pre-accident lifestyle, but that communicating on that social media platform had become so difficult after the accident that she deactivated the account six months later. She alleged that, after her accident, it would take hours to write a message on Facebook because she would have to re-read it several times before sending it to be sure that it made sense. Defendant requested an unlimited authorization to obtain plaintiff’s “private” Facebook account postings, arguing they would be relevant to plaintiff’s claims. The Supreme Court ordered plaintiff to produce all photographs (that were not of a romantic or sexual nature) and an...

Don’t Ask For Too Much: Court Strikes Balance in Addressing Dispute Over Discoverability of Social Media

Don’t Ask For Too Much: Court Strikes Balance in Addressing Dispute Over Discoverability of Social Media

In a recent case, Magistrate Judge Mark L. Carman of the United States District Court for the District of Wyoming reminds practitioners that requests for social media data still must be relevant and proportional to the dispute. In this auto accident case, the Court found a balance between the need for defendants to determine whether a plaintiff is lying or exaggerating and the possibility that allowing defendants too much leeway in seeking social media could dissuade injured plaintiffs from pursuing legitimate claims for fear of humiliation and embarrassment. Plaintiff alleged she sustained physical injuries, traumatic brain injury, posttraumatic stress disorder, anxiety, and depression. In an extraordinarily broad discovery request, defendant requested that plaintiff produce “an electronic copy of your Facebook account history.” Plaintiff downloaded and produced information from her Facebook accounts gathered by using several keyword search terms. However, plaintiff refused to produce her entire Facebook archive, and defendant moved to compel. The Court explained that “[s]ocial media presents some unique challenges to courts” in determining the proper scope of discovery. In particular, Judge Carman explained: “People have always shared thoughts and feelings, but typically not in such a permanent and easily retrievable format. No court would have allowed unlimited...

New York Bar Association Revises Social Media Ethics Guidelines

New York Bar Association Revises Social Media Ethics Guidelines

On May 11, 2017, the Commercial and Federal Litigation Section of the New York State Bar Association issued its third iteration of Social Media Ethics Guidelines. As the authors of the Guidelines aptly recognize: “As use of social media by lawyers and clients continues to grow and as social media networks proliferate and become more sophisticated, so too do the ethics issues facing lawyers.” This recent update adds principles regarding professional competence and attorney use of social media, and addresses ethical considerations regarding maintaining client confidences, handling potential conflicts of interests related to social media, following clients’ social media, and communicating with judges via social media. Issued in 2014 and updated in June 2015, the Guidelines aim to provide “guiding principles” as opposed to “best practices” for the modern lawyer’s evolving use of social media. The authors acknowledge the guidelines’ inherent inability to define universal principles in the face of varying ethics codes, which “may differ due to different social mores, the priorities of different demographic populations, and the historical approaches to ethics rules and opinions in different localities.” The Guidelines are based upon the New York Rules of Professional Conduct and New York bar associates’ interpretation of those rules....

New Jersey Attorneys Must Face Ethics Charges for Facebook Friending 0

New Jersey Attorneys Must Face Ethics Charges for Facebook Friending

On February 3, 2015, the Appellate Division of the New Jersey Superior Court affirmed the dismissal of a complaint two attorneys filed against the Office of Attorney Ethics and its Director (collectively “OAE”) claiming OAE lacked authority to investigate and prosecute ethics grievances against them for “friending” a party to a litigation on Facebook. The Appellate Division’s decision is significant – it affirms OAE’s power to investigate and prosecute alleged ethical violations and demonstrates the potential consequences for attorneys’ improper use of social media in litigation.

Florida is the Latest State to Allow Attorneys to Advise Clients About the Removal of Social Media Posts and Pictures 0

Florida is the Latest State to Allow Attorneys to Advise Clients About the Removal of Social Media Posts and Pictures

On January 23, 2015, the Professional Ethics Committee of the Florida Bar issued an advisory opinion holding that before litigation commences, and absent any other preservation obligation, an attorney may advise a client to: (1) remove information from social media pages and (2) change privacy settings from public to private, as long as the client retains a record of any deleted information or data. In so holding, the Florida ethics committee joined panels from New York, Pennsylvania, and North Carolina that have issued similar guidance.

Second Circuit Vacates Defendant’s Conviction Due to Government’s Failure to Authenticate Social Media Evidence 0

Second Circuit Vacates Defendant’s Conviction Due to Government’s Failure to Authenticate Social Media Evidence

The Second Circuit Court of Appeals has reversed a conviction for unlawful transfer of a false identification document (a forged birth certificate) because the district court abused its discretion and committed error in admitting a Russian social media page — akin to Facebook — that the government failed to authenticate as required by Federal Rule of Evidence 901.

ABA Says that Attorneys May Investigate Jurors’ Social Media Presence, Even if Automatic Notifications are Generated 0

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

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.

Daughter’s Bragging to Facebook Friends Renders $80,000 Settlement Unenforceable 0

Daughter’s Bragging to Facebook Friends Renders $80,000 Settlement Unenforceable

Recently, a Florida appellate court held that a former headmaster was not entitled to an $80,000 payment pursuant to a settlement agreement with his former employer, all thanks to his chats with his daughter about the settlement, and her subsequent Facebook post bragging about the settlement. Patrick Snay sued Gulliver Schools, Inc. for age discrimination and retaliation. Gulliver agreed to pay Snay, in part, $80,000 to settle all claims. The parties’ agreement contained a non-disclosure provision requiring the existence and terms of the settlement be kept confidential, and upon breach by Snay or his wife, the disgorgement of the $80,000 payment.

Delaware Adopts Less-Stringent Approach to Authentication of Social Media Evidence: The Jury, and Not the Trial Judge, Ultimately Decides 0

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

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.