Embed Size (px)
Citation preview
Using Social Media—Legal and Ethical Issues of
Getting Connected Wednesday, June 26, 2013
Presented By the IADC Business Litigation Committee
Welcome! The Webinar will begin promptly at 12:00 pm CDT. 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 pod on the upper-
right-hand side 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 “Files” pod in the lower-right-hand corner of the screen if you would like to
download a copy of this PowerPoint presentation.
Type your questions for presenters here in the Q&A Pod
Click on the file name to download this Power Point or 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.
Presenters
Steven Puiszis Hinshaw & Culbertson LLP
Chicago, IL
Douglas Vaughn Deutsch, Kerrigan & Stiles, L.L.P.
Gulfport, MS
Evolution of Communication
• Jungle Drums/Cave Drawings
• Party Lines/Western Union • Mail • Telephone/Fax • Beepers • Voice Mail • Cellphones • Video Conference • Personal Computer • Blackberry/PDA • iPod/iPhone/iPad
Handling Change in Communication
“It is not the strongest of the species that survives, nor the most intelligent, but the one most responsive to change.”
Charles Darwin
Social Media – It’s Taking Over!
• Email/Text
• You Tube
• Foursquare
• Virtual
• Independent Websites
• MobileMe
These represent a huge investigative tool for our practice.
Social Media – The Facebook Resource
• More than 1 billion monthly active users
– 58% return daily
– If Facebook was a country, it would be the third largest country in the world
• 300 million photos uploaded daily
• Average user creates 90 pieces of content each month.
Social Media – The Facebook Resource
• More than 30 billion pieces of content
(weblinks, blog posts, notes, photo albums) shared each month
• 80% of business are active on Facebook Source: Facebook Press Release March 27, 2011
Use of Social Media as an Investigative Tool
Another Social Media -Twitter
• 500 million registered users on Twitter as of 2012
• Twitter sees about 175 million tweets per day
• 750 tweets are shared on Twitter per second
Source: www.twitter.com
• LinkedIn has over 200 million members
• LinkedIn gains 1 million new users every 12 days, or 2 new users every second.
• Over 3 million join per month from college students to C-Level executives.
Source: www.linkedin.com
How Social Media Works
• Users create an online profile which may be accessed by all web users
• Users may upload photos and create profiles of themselves
• Typically, social networks have privacy controls that allow users to choose who can view their profiles or contact them.
• Both users must confirm they wish to “friend” or connect with each other before they are linked and can view one another’s profiles.
Legal Precedent on Obtaining Evidence from Social Media Networks
• New York State Bar Association, Committee on Professional Ethics – Opinion 843 (September 10, 2010)
• Philadelphia Bar Association, Professional Guidance Committee, Opinion 2009-02 (March 2009)
• San Diego County Bar Legal Ethics Committee, Opinion 2011-2 (2011)
Philadelphia Bar Opinion 2009-02
• Question posed by inquiring attorney was:
Can a lawyer have a third-party “friend” a witness to access the witness’s Facebook and MySpace accounts and provide truthful information of the third-party but concealing his association with the inquiring lawyer and the real purposes behind “friending” the witness (obtaining potential impeachment material)?
PA Rules of Professional Conduct
• PA Rules of Professional Conduct (RPC) 8.4(c), 5.3(1) and 4.1(a) are all implicated.
• Philadelphia has adopted the Model Rules of Professional Conduct
Pennsylvania RPC 8.4(c)
• It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
Pennsylvania RPC 4.1
Rule 4.1. Truthfulness In Statements to Others provides in part that,
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person;
Pennsylvania RPC 5.3(c)(1) (Supervisory Duties)
Rule 5.3 Responsibilities Regarding Nonlawyer Assistants provides in part that, With respect to a nonlawyer employed or retained
by or associated with a lawyer:
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved;
Philadelphia Bar Opinion Holding
• All three RPCs would be violated? Why?
• Yes. The proposed “friending” by a third-party would constitute deception in violation of Rules 8.4 and 4.1 and a supervisory violation under Rule 5.3 because the third-party would omit a MATERIAL fact (i.e., that the third-party was seeking access to the witness social networking pages solely to obtain information for the lawyer to use in the pending lawsuit.)
Philadelphia Bar Opinion Holding
• If the inquirer simply asked the witness forthrightly for access. “That would not be deceptive and would of course be permissible.”
“Plainly, the reason for not doing so is that the inquirer is not sure that [the witness] will allow access and wants to adopt an approach that will deal with her possible refusal by deceiving her from the outset. In short, in the Committee’s view, the possibility that deception might not be necessary to obtain access does not excuse it.”
NY State Bar Assn Opinion 843
• In this opinion, a lawyer wishes to view Facebook or MySpace profiles of another party’s social networking site for the purpose of gathering information for client in pending litigation.
Can she do it?
NY State Bar Assn. Opinion 843
• Obtaining information about a party available on Facebook or MySpace is similar to obtaining information that is available in publicly accessible online or print media or through a subscription service like NEXIS or Factiva.
This is plainly permitted.
NY State Bar Assn. Opinion 843
• Holding: A lawyer may view a party’s Facebook or MySpace profiles other than the lawyer’s client as long as the party’s profile is available to all members in the network and the lawyer neither “friends” or contacts the other party nor directs some else to do so.
• NY relied on the Philadelphia Bar Opinion for guidance.
NY State Bar Assn. Opinion 843
• Here, Rule 8.4 is not implicated because the lawyer is not engaging in deception by accessing a public website that is available to anyone in the network, provided the lawyer does not employ deception in any other way (e.g., employing deception to become a member of the network.)
NY State Bar Assn. Opinion 843
• Rule 4.1 is not implicated because there is no false statement of fact or law being said.
• Rule 5.3(c)(1) is not implicated because lawyer is not directing a nonlawyer to act unethically at his direction.
San Diego County Bar Legal Ethics Opinion 2011-2
• An attorney represented a former employee in a wrongful discharge action, and obtained from his client a list of all the former employer’s employees. The employer is represented by counsel. The attorney sent out a “friend” request to two high-ranking company employees whom the client identified as being dissatisfied with the employer. The lawyer believes these employees will make disparaging comments about the employer on the social media page.
• Has the attorney violated his ethical obligations?
San Diego County Bar Legal Ethics Opinion 2011-2
• California Rule of Professional Conduct 2-100 says, in pertinent part:
– “(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a part the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.”
• The term “high-ranking employees” suggests that these employees “exercise substantial discretionary authority over decisions that determine organizational policy” and were treated as part of the represented corporate party for purposes of Rule 2-100.
• Does a Friend request constitute unethical ex parte contact with the high-ranking employees?
– Keep in mind that the high-ranking employee can decline the attorney’s request.
– Is the request a communication “about the subject of the representation” for ethical purposes?
– Isn’t a friend request simply the following statement: “[Name] wants to have access to the information you are sharing on your Facebook page.”
• The purpose of the ex parte communication is at the heart of the offense.
• 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.
ABA Model Rules
• Rule of Thumb: You can’t be dishonest!
• Always check your ethical rules:
– ABA Model Rule 4.1(a)
– ABA Model Rule 8.4(c)
Lawyers Use of Social Media
• Rule 1.6 – Duty of Confidentiality
– Not limited to Attorney-Client Privilege
– Applies to any information learned in the course of representation
• Do not discuss your cases through social media
Social Media is Discoverable
• Federal Rules of Civil Procedure, 2006 Amendments:
– ESI was included, and "intended to be read expansively to include all current and future electronic storage mediums." Notes of the Advisory Committee to the 2006 Amendments to Rule 34
If you want to obtain social media in discovery, always ask these three questions:
• Is social media relevant to the claims or defenses at issue in your litigation?
• If so, is it within your possession, custody, or control?
• And, finally, is there anything else that may preclude or limit discovery of social media content?
• The amount of publicly available information that can be uncovered depends upon what social networking site the person uses and the security/privacy settings the person has activated on the site (if any).
• User’s postings, list of friends, shared photos and videos, and other valuable information are often publicly available.
Stored Communication Act (SCA)
• O'Grady v. Superior Court, 139 Cal.App.4th 1423, 1448 (Cal.App. 2006) – Subpoena to email service provider of web journal
could not be enforced due to the SCA.
• Crispin v. Christian Audigier, Inc. 2010 WL 2293238, 6 (C.D.Cal.) (C.D.Cal. 2010); – The court found portions of an individual’s social
networking sites designated as “private” to be secure information under the federal Stored Communications Act.
• Exceptions to SCA Prohibitions: – While the SCA permits disclosure of user
information to a governmental entity pursuant to a criminal warrant, there is no provision in the SCA allowing disclosure of information in response to a civil subpoena.
• If it is necessary to obtain protected communications directly from the Internet Service Provider (ISP), SCA permits it with the consent of the user/subscriber.
• If voluntary consent cannot be obtained, the requesting party may seek a court order compelling the user/subscriber to provide consent.
– Risk that evidence may be lost while consent is sought.
– ISP can be notified requesting party is seeking consent and asked to preserve.
Subpoena to Preserve ESI
• Aside from request to preserve, a party can ask court to issue a preservation subpoena to the ISP.
– Court must have jurisdiction over ISP.
– Preservation subpoena would not compel ISP to divulge contents of communications, just preserve the communications.
• Courts are willing to require users to produce social networking information in response to reasonably tailored discovery requests.
– EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTLDML (S.D. Ind. May 11, 2010) (Sexual Harassment)
– Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup.Ct. Sept. 21, 2010).
F.T.C. v. PCCARE247 INC., et al.,
2013 WL 841037
Service of documents other than
summons & complaint allowed by court via e-mail and Facebook
F.T.C. v. PCCare247, Inc.
• Defendant located in India
• Allegations: Deception used to entice customers to spend money on unnecessary computer fixes
• Service via Hague Service Convention:
• Defense counsel appeared, then withdrew for non-payment of fees
• F.R.Civ.P.4(f)(3), “a Court may fashion means of service on an individual in a foreign country, so long as the ordered means of service (1) is not prohibited by international agreement; and (2) comports with constitutional notions of due process.” SEC v. Anticevic, No. 05 Civ. 6991(KMW), 2009 WL 361739, at *3 (S.D.N.Y.
Feb. 13, 2009) (citations omitted).
F.T.C. v. PCCare247, Inc.
F.T.C. v. PCCare247, Inc.
Under Rule 4(f), service of process on foreign corporations may be made in the same manner as on individual defendants. See Fed.R.Civ.P. 4(h)(2).
• Service of process under Rule 4(f)(3) is neither a last resort nor extraordinary relief. It is merely one means among several which enables service of process on an international defendant.” Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 115 (S.D.N.Y.2010) (citation omitted).
F.T.C. v. PCCare247, Inc.
F.T.C. v. PCCare247 Inc.
• Plaintiff not required to attempt service through the other provisions of Rule 4(f) before the Court may order service pursuant to Rule 4(f)(3), but district court may require showing of reasonable attempts at service on the defendant(s) and that the circumstances are such that the court’s intervention is necessary. Antisevic, 2009 WL 361739, at *3
F.T.C. v. PCCare247 Inc.
• “The decision of whether to order service of process under Rule 4(f)(3) is ‘committed to the sound discretion of the district court.’ “ United States v. Lebanese Canadian Bank, 285 F.R.D. 262, 266 (S . D.N.Y.2012) (quoting Madu, 265 F.R.D. at 115)
F.T.C. v. PCCare247, Inc.
• Citing costs of service by publication, FTC requested leave to serve the defendants through BOTH email and Facebook.
The Proposed Means of Service Are Not Prohibited By International Agreement
The Proposed Means of Service Comport With Due Process
Service By the Proposed Means Is Warranted Here
Factors for Determination
Proposed Means of Service Not Prohibited By International Agreement
• United States and India are signatories to the Hague Service Convention
• Service by email and Facebook are not among the means listed in Article 10, and India has not specifically objected to them
• (India had objected to means in Article 10)
The Proposed Means of Service Comport With Due Process
• FTC would send a Facebook message, to the Facebook account of each individual defendant, attaching relevant documents.
• FTC has set forth facts that supply ample reason for confidence the Facebook accounts identified are actually operated by defendants
The Proposed Means of Service Comport With Due Process
• The Court acknowledged service by Facebook is a novel concept, but, as noted, is not intended as the sole method of service (verified e-mail account).
• History teaches that courts must be open to considering requests via technological means of then-recent vintage
The Proposed Means of Service Comport With Due Process
• FTC's proposal to serve defendants by both email and Facebook satisfies due process.
• Where defendants run an online business, communicate with customers via email, and advertise their business on Facebook pages, email & Facebook together presents a means highly likely to reach defendants.
Service By the Proposed Means Is Warranted Here
• Court also considers the FTC's good faith efforts to serve defendants by other means:
• Defendant’s counsel withdrew.
• FTC is left with no way to serve defendants except by the Indian Central Authority, which to date has not shown a disposition to act/respond to FTC inquiry.
Party Must Satisfy Due Process Concerns of Courts – Facebook Service Denied
• Fortunato v. Chase Bank USA, NA,
S.D.N.Y. June 7, 2012 2012 WL 2086950
“[c]onstitutional due process requires that service of process be ‘reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’”
Party Must Satisfy Due Process Concerns of Courts – Facebook Service Denied
• Fortunato v. Chase Bank USA, NA
S.D.N.Y. June 7, 2012 2012 WL 2086950
• Service by Facebook is unorthodox & this Court is unaware of any other court that has authorized such service.
Party Must Satisfy Due Process Concerns of Courts – Facebook Service Denied
• Fortunato v. Chase Bank USA, NA
• S.D.N.Y. June 7, 2012 2012 WL 2086950
• Furthermore, in those cases where service by email has been approved, movant supplied the Court with facts indicating the person to be served would be likely to receive the summons and complaint at the given email address.
Service by Facebook allowed in the United Kingdom
• March 14, 2011, report of Solicitor obtaining court approval to serve notice of judgment debtor exam via Facebook
• http://www.telegraph.co.uk/technology/facebook/8382570/British-lawyer-uses-Facebook-to-serve-court-summons.html
• February 21, 2012, Justice Teare issued ruling allowing high court claims to be served via Facebook
• http://amlawdaily.typepad.com/amlawdaily/2012/02/facebookclaimserve.html
Service by Facebook in English Courts
• AKO Capital, LLP v. TFS Derivatives, Ltd. : Settled out of court after service was acknowledged (via Facebook) on November 2, 2011.
Service by Facebook in English Courts
• Whilst the law has not been changed to give express permission to serve via social media, the courts are becoming increasingly willing to authorise such methods of service.
• The point of service is considered to be the factual question of whether the proceedings have come to the attention of the Defendant, and “the court would have to be satisfied that the method used either had put the recipient in a position to ascertain its contents or was reasonably likely to enable him to do so within any relevant time period.” (Access to Justice – Final Report (July 1996)).
• Source: Charlotte Marshall, Carter Perry Bailey LLP
Service by Twitter in English Courts
• High Court has given permission for an injunction to be served via Twitter
• The order is to be served against an unknown Twitter user who anonymously posts to the site using the same name as a right-wing political blogger.
• Plaintiff turned to Twitter to serve the injunction rather than go through the potentially lengthy process of contacting Twitter headquarters in California and asking it to deal with the matter.
Service by Twitter in English Courts (cont.)
• UK law states that an injunction does not have to be served in person and can be delivered by several different means including fax or e-mail.
• Plaintiff decided to use Twitter after a recent case in Australia where Facebook was used to serve a court order.
• http://news.bbc.co.uk/2/hi/8285954.stm
Service by Facebook in Australia
• December 12, 2008, a court in Australia ruled a mortgage lender can use Facebook to break the news to a couple that they have lost their home.
• Ruling in Australian Capital Territory Supreme Court allowed a lender to use Facebook to serve legal documents after weeks of failed attempts to contact borrowers at their home and by e-mail
• http://www.huffingtonpost.com/2008/12/16/facebook-lien-notice-now-
_n_151341.html
Australia (cont’d)
• The lender's lawyer, Mark McCormack, said that by the time he got the documents approved by the court for transmission, Facebook profiles for the couple had disappeared. The page was apparently either closed or secured for privacy, following publicity about the court order.
Australian Courts Cont’d:
• Where traditional methods of service have proved impractical, Facebook can be used if court is satisfied that such use is “reasonably likely” to bring attention to the relevant party.
• At least one judge expressed concern about “the uncertainty of Facebook pages” and the fact that “anyone can create an identity that could mimic the true person’s identity”.
• Consider the following:
– Is there enough evidence to satisfy the court that the profile in question is in fact that of the person on whom service is to be effected?
MKM Capital Pty Ltd v. Corbo & Poyser (Unreported, ACT Supreme Court, Master
Harper, 12 December 2008); Citigroup Pty Ltd v. Weerakoon [2008] QDC 174.
Credit: Annette Hughes, IADC, Melbourne, Australia
MKM CAPITAL PTY LTD v. CORBO & POYSER
• In MKM, the court allowed for substituted service of a default judgment to be effected by leaving a copy of the judgment at the defendants’ last known address, emailing a copy of the papers to a specified email address and also alerting them to the judgment via a private message on Facebook.
• Plaintiffs satisfied the court by demonstrating:
– The dates of birth, email addresses and friend lists matched the plaintiff’s records of defendants.
Facebook’s Statement:
• Facebook spokesman Barry Schnitt praised the ruling: "We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication," he said. "The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives," Schnitt added.
• http://www.huffingtonpost.com/2008/12/16/facebook-lien-notice-now-_n_151341.html
Questions for Presenters?
Steven Puiszis Hinshaw & Culbertson LLP
Chicago, IL
Douglas Vaughn Deutsch, Kerrigan & Stiles, L.L.P.
Gulfport, MS
Using Social Media—Legal and Ethical
Issues of Getting Connected Wednesday, June 26, 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
