Embed Size (px)
Citation preview
Ethical Considerations in the Use of Social Media
Before and During Trial Tuesday, January 22, 2013
Presented By the IADC Trial Techniques & Tactics Committee
Welcome! The Webinar will begin promptly at 12:00 pm CST. Please read and
follow the below instructions:
1. If you have not already done so, please join the conference call.
2. Mute your phone line. If you do not have a mute button or are on a cell phone, press *1 to
mute your phone.
3. If you are on a conference phone, please move all cellular or wireless devices away from
the conference phone to avoid audio interference.
4. If you have questions during the presentation, you may utilize the Q&A function at the top
of your screen. You may type questions here and it will be sent to the presenter for
response. If your question is not answered during the presentation, our presenter will
answer questions at the end of the webinar.
5. Visit the “Handouts” section in the upper-right-hand corner of the screen if you would like
to download a copy of this PowerPoint presentation.
Click on the Q&A tab on
your screen to type a
question for the
presenters.
Click the Handouts tab on
your screen to download
this PowerPoint and any
referenced documents
IADC Webinars are made possible by a grant from The Foundation of the
IADC.
The Foundation of the IADC is dedicated to supporting the advancement of
the civil justice system through educational opportunities like these Webinars.
For more information on The Foundation, visit www.iadcfoundation.org.
Craig Thompson Venable LLP
Baltimore, MD
Presenters
Kay Baxter Swetman Baxter Massenburg LLC
New Orleans, LA [email protected]
Facebook 1 billion users
Facebook Mobile 604 million users
Twitter 500 million total users
LinkedIn 200 million users
YouTube 800 million users
Tagged 330 million users
QQ 700 million users
Qzone 500 million users
Initial Interview
Strategy as to Discovery and Witnesses
Voir Dire – the easy scenario to imagine
Judge’s Instructions
WRONG.
The “SCA”
18 U.S.C. §2701 et seq.
No court, to date, has recognized a “social media
privilege.”
The very purpose of social media is to share
information with scores of people, not to conceal
it.
The courts have held that confidentiality is not
essential to maintain the relationships between
and among social network users.
Equal Employment Opportunity
Commission v. Simply Storage
Management
270 F.R.D. 430 (U.S.D.C. S.D. Ind. 2010)
Content on social media sites is not
shielded from discovery simply because the
information is “locked” from public view or is
“private.”
Trail v. Lesko, July 5, 2012 decision of the Allegheny County Court of Common Pleas, Pennsylvania
Robinson v. Jones Lang LaSalle Americas, Inc., 2012 WL 3763545 (D. Oregon 2012)
McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (PA. Ct. Com. Pl. 2010)
McCann v. Harlesyville Ins. Co. of New York, 910 N.Y.S.2d 614 (N.Y.App. Div. 2010)
Romano v. Steelcase, Inc., 807 N.Y.ed 650 (N.Y.Sup.Ct. 2010)
But even at the onset of your first meeting
with your client… social media has
changed the scope of that initial client
interview
As a part of the discovery process, review, and ask for, opposing party’s social media activity.
“Fishing expeditions” will not typically be allowed.
Connect your request for social media content to information relevant to the claims and defenses of the lawsuit.
Is it ethical to hire a third party to “friend”
an adverse witness?
Is it ethical to “friend” an adverse witness
for the sole purpose of litigation?
Model Rule of Professional Conduct Rule
4.2
If the witness’ page is public, it is easy to obtain that public information by simply going to the social media provider and viewing the witness’ profile.
For the “private” portions of the witness’ page, the lawyer will need to “friend” the witness—obtain consent—to view the profile and all its posts.
Or, simply provide the court with a valid basis for production and ask the court for an Order to the adverse party to execute consent and authorizations as required by Facebook or MySpace to release that party’s current and historical pages and accounts, including all deleted or archived pages and related information.
Don’t forget to interview your client about
their social media use both professionally
and personally
Don’t forget about its impact on the
strategy of your case
Don’t forget about its impact on discovery
Don’t forget about its impact in the
courtroom
Questions for Presenters?
Kay Baxter Swetman Baxter Massenburg LLC
New Orleans, LA [email protected]
Craig Thompson Venable LLP
Baltimore, MD
Ethical Considerations in the Use of Social Media
Before and During Trial Tuesday, January 22, 2013
Thank you for Participating!
To access the PowerPoint presentation from this or any other IADC Webinar, visit our
website under the Members Only page (you must be signed in) and click on “Past Webinar
Materials,” or contact Melisa Maisel at [email protected].
