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This ABA TechShow presentation is for lawyers and companies who want to have a better understanding of the increasingly important role that social media plays in litigations around the country (and the world). Counsel need to understand that social media is a game changer, and a powerful tool that can be harnessed to win (or lose) a case.For additional information on this presentation, please contact Antigone Peyton (antigone.peyton@cloudigylaw.com).
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April 11-13, 2011 www.techshow.com
Session Title
Presenters {Name} {Name}
April 11-13, 2011 www.techshow.com
PRESENTED BY THE
Litigators’ Toolbox: Social Media
Presenters
Judge Herbert Dixon Sharon Nelson
Antigone Peyton
April 11-13, 2011 www.techshow.com
Social Media
April 11-13, 2011 www.techshow.com
Social Media • Internet forums • Weblogs • Social blogs • Microblogging • Wikis • Podcasts • Pictures • Video • Ratings • Social bookmarking
April 11-13, 2011 www.techshow.com
Facebook Stats • April 2011: Nearly 600 million active
Facebook users (50% daily users) • Over 100 million w/public information • Complete Facebook profile contains
over 40 pieces of information (+wall posts & status updates)
• 2/3 of comScore’s Top U.S. websites integrated
April 11-13, 2011 www.techshow.com
Some Global User Stats
• Twitter – 190 million • LinkedIn – 75 million • Plaxo – 40 million • MySpace – 65 million
April 11-13, 2011 www.techshow.com
Social Media: Advice For Clients • The President’s Advice:
“Well, let me give you some very practical tips. First of all, I want everybody here to be careful about what you post on Facebook, because in the YouTube age, whatever you do, it will be pulled up again later somewhere in your life.” “Obama warns U.S. teens of perils of Facebook,” Sept. 8, 2009 (Reuters).
April 11-13, 2011 www.techshow.com
How Long Does It Last? • Approximately forever, so THINK before you
post • Twitter keeps all tweets • April 14, 2010--Library of Congress
announced that it is acquiring entire public archive of Tweets
• Facebook keeps posted info until deleted items are overwritten
• You can’t control what others do with your posts/photos
April 11-13, 2011 www.techshow.com
Deleted Does NOT Mean “Deleted”
• Computer forensics can recover data until overwritten
• May exist on social media servers until overwritten
• Someone else may have reposted or kept the data (e.g., “wayback machine”)
April 11-13, 2011 www.techshow.com
Social Media In Court • Criminal proceedings-
sentencing, alibi • Evidence to discredit
witness/impeachment • Investigation tool-
authorities, lawyers, and jury consultants
April 11-13, 2011 www.techshow.com
The Power Of Social Media Evidence
• American Academy of Matrimonial Lawyers – 80% of members have
seen a sharp increase in SM evidence
– One in five cases now involves FB evidence
– In the U.K. 1/5 of divorce petitions cite FB
April 11-13, 2011 www.techshow.com
Regular Use Of Social Media
• Criminal law • Employment law • Personal injury law
April 11-13, 2011 www.techshow.com
Its Not Yours Only • Privacy preferences give way to
liberal discovery rules in litigation • Many rights are waived upon joining,
or by default settings • Information may be subject to
subpoena • Little to no expectation of privacy • Leduc v. Roman (Quebec)-private
Facebook page still discoverable
April 11-13, 2011 www.techshow.com
Finding Evidence On Social Networking Sites
• The old days: little privacy, you could mine at will
• Today: the majority of people understand privacy settings
• Always check – many accounts are still “open” • A “friend” might always provide info • Deception is obviously unethical (on the part of
the attorney or her staff) • If someone else deceives (without your
involvement), it will probably come in
April 11-13, 2011 www.techshow.com
Social Media Ethics • Phila. Bar Op. 2009-02 (3/2009) • Lawyer had 3rd party send friend
request to adverse witness • Lawyer cannot do that for purposes of
searching for otherwise private information on Facebook page
• Rules regarding non-lawyer assistants apply to third-party actions
• Concerns re: dishonesty, fraud, deceit or misrepresentation
April 11-13, 2011 www.techshow.com
New York Bar Association
• (Sep. 24, 2010) Ethics opinion
• Attorneys can comb through PUBLIC areas of social media sites
April 11-13, 2011 www.techshow.com
Service of Process
• London High Court allowed service of a court order to an anonymous blogger over Twitter
• Australian court allowed service of a default judgment through Facebook
• 9th Circuit ordered e-mail service
April 11-13, 2011 www.techshow.com
How To Get Social Media Evidence • Civil subpoenas were long honored • Now ISPs are citing the ECPA and the
SCA and challenging subpoenas • 18 U.S.C. Sec. 2702-2703 – can’t
divulge the contents of e-mails or other electronic records
• Some exceptions for law enforcement
April 11-13, 2011 www.techshow.com
What Are “Contents?”
• It should be the substance of a message
• Attorneys have gotten odd responses – Times of connections, IP addresses are
content – When challenged SM sites have backed
down
April 11-13, 2011 www.techshow.com
Leading Case • In Re Subpoena Duces Tecum to AOL, LLC, 550 F.
Supp. 2d 606, 2008 U.S. Dist. LEXIS 39349 (E.D. Va. April 18, 2008)
• ECPA prohibits an e-mail service provider from producing customer’s e-mail in response to a civil subpoena because it is not a disclosure exemption under the Act
April 11-13, 2011 www.techshow.com
SCA vs. Social Media • Crispin v. Christian Audigier, Inc.
(C.D. CA. May 26, 2010) • First case to hold that SCA applies to
social networking sites • Held that messages and comments
visible to a restricted set of users were private
• Artist Crispin claimed Ds violated copyright – Ds wanted all MySpace and Facebook references to Ds
• Trying to fit facts into SCA (1986 law) – a very bad fit
April 11-13, 2011 www.techshow.com
If You Sue…Your Life Is An Open Book
• EEOC v. Simply Storage Management (S.D. In. May 11, 2010)
• Permitted discovery of all relevant SM data whether or not it was private
• EEOC had sued on behalf of two women claiming sexual harassment
• Defendant employer sought the info
April 11-13, 2011 www.techshow.com
Looking Ahead
• The information will probably still be discoverable and the respondent will have to provide it
• If they don’t, attorneys will ask court to compel discovery
April 11-13, 2011 www.techshow.com
How to Subpoena Facebook
• http://www.facebook.com/help/?safety=law
• “Facebook urges parties to resolve their discovery issues without involving Facebook”
• Stored Communications Act, 18 U.S.C. § 2701 et seq. prohibits disclosure of all but basic subscriber info
April 11-13, 2011 www.techshow.com
FB & User Both Have Access • Unless user has terminated account,
unknown how long data retained (was 90 days, believed to be less now)
• You must serve a valid California or Federal subpoena on Facebook. Out-of-state civil subpoenas must be domesticated in California. Facebook’s registered agent for service of process: Custodian of Records, Facebook, Inc. c/o Corporation Services Company 2730 Gateway Oaks Drive Suite100 Sacramento CA 95833
April 11-13, 2011 www.techshow.com
What Does It Cost?
• $500 for each account
• $200 for expedited response
• 30 days response time
April 11-13, 2011 www.techshow.com
User Consent Forms
• Obsolete for Facebook, should work for any other sites
• Pursuant to a Rule 34 request for production of relevant, non-privileged material
• Material produced to user or attorney for review before production
April 11-13, 2011 www.techshow.com
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Downloading An Account • Facebook will prepare download and
send a link via e-mail to the user • All elements of the site – wall, photos,
etc. will download as a zip file • User’s counsel will screen for relevant,
non-privileged info prior to production
April 11-13, 2011 www.techshow.com
Danger Of Spoliation
• Attorneys routinely advising deletions (prior to litigation holds)
• Client often deletes after litigation holds
• Preservation of evidence letters critical
• If spoliation suspected, computer forensics may be needed
April 11-13, 2011 www.techshow.com
Preserving Social Media Evidence
• Generally less than perfect options available
• Screenshot or PDF • Someone will have to authenticate • Can use GoToMeeting, CamStudio or
other programs to record the process • Inexpensive to use third-party expert
April 11-13, 2011 www.techshow.com
Evidentiary Issues
• St. Clair v. Johnny’s Oyster & Shrimp, Inc. – Any evidence procured from the Internet is
good for almost nothing • Lorraine v. Markel American Insurance
Co. – Counsel must be prepared to deal with the
evidentiary issues associated with admissibility
April 11-13, 2011 www.techshow.com
Evidentiary Issues
• FRE 901 • 901(b)(1). Testimony of witness with
knowledge. • 901(b)(3). Comparison by the trier of fact or by
expert witnesses with a specimen. • 901(b)(4). Distinctive characteristics and the
like. • 901(b)(7). Public records. • 901(b)(9). Evidence produced as a result of an
accurate process or system.
April 11-13, 2011 www.techshow.com
Evidentiary Issues
• FRE 902: “SELF AUTHENTICATION” • Three of the rules have been used in
the courts to authenticate ESI: • 902(5). Official publications. • 902(7). Self-authentication by
inscriptions, signs, tags or labels. • 902(11). Authentication of regularly
conducted business.
April 11-13, 2011 www.techshow.com
Facebook Authentication
• Notarized declarations as to validity provided (an extra $100)
• But no witnesses for trial or depositions
• Will notify user of subpoena to allow time for motion to quash
April 11-13, 2011 www.techshow.com
How Do You Authenticate?
• Smart lawyers – Requests for admission – Stipulations
• Many courts have common sense rule: If the other side doesn’t object, it comes in
April 11-13, 2011 www.techshow.com
Authentication
• Did you post this? • Did you see this post? • Context and content
can authenticate • Expert testimony • Computer forensics if
data was deleted
April 11-13, 2011 www.techshow.com
Snitches Get Stitches: U Know Who U Are!
• Griffin v. Maryland (Ct. of App. M.D. May 27, 2010)
• Murder case - D’s girlfriend appeared to threaten a witness on MySpace
• Site maintained under pseudonym • Prosecution sought to intro to rehabilitate
witness who changed testimony • Had photo of D and girlfriend • Page referred to D as “Boozy” • Court said site could be authenticated
from content and context
April 11-13, 2011 www.techshow.com
Prosecutors Embracing Social Media
• Cameron County TX • Searching SM sites of
prospective jurors • “Googling” them • Keeping up with the
defense in jury investigations
iJuror
April 11-13, 2011 www.techshow.com
Voir Dire Trends • Wall Street Jrnl. (Feb. 22, 2011)-
Prosecution and defense lawyers probing jury pool – Religion – Activities – What TV they watch – Opinions they hold – But much is now private – Useful to know that someone is
married and loves GLEE?
April 11-13, 2011 www.techshow.com
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