Legal Series: Ethical Issues in Attorney Use of Social Media LIVE Webcast

Speaker Firms and Organization:

Alston & Bird LLPColin K. Kelly

Partner

Trial Partners, Inc.Mark R. Phillips, Ph.D.

Vice President and Senior Consultant

Blank Rome LLP Jeffrey N. Rosenthal

Attorney

Scarab ConsultingLarry Lieb, ACE, CCA

Chief Innovation Officer

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Friday, January 31, 2014 Friday, January 31, 2014

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Sponsored By:


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With nearly 800 attorneys, Alston & Bird is a leading national AmLaw 50 firm. The firm's core practice areas are intellectual property, complex litigation, corporate and tax, with national industry focuses in energy and sustainability, health care, financial services and public policy. The firm has built a reputation as one of the country's best employers, appearing on FORTUNE magazine's ranking of the "100 Best Companies to Work For" 15 consecutive years, an unprecedented accomplishment among law firms in the United States. The firm has offices in Atlanta, Brussels, Charlotte, Dallas, Los Angeles, New York, Research Triangle, Silicon Valley, and Washington, D.C. www.alston.com

Trial Partners, Inc. is a national trial and jury consulting firm, headquartered in Los Angeles, dedicated to offering the highest quality services in a timely, cost-effective, and confidential manner.

The depth of experience and skill that Trial Partners brings to its clients is rare. Our consultants have worked on over 5,000 cases and we have assisted in over 1,500 jury selections. We have worked in multiple counties in 43 states, plus in the District of Columbia and the Commonwealth of Puerto Rico.

The consultants at Trial Partners are recognized as leading authorities in jury psychology and legal strategy in all types of cases and jurisdictions. Our team of seasoned professionals combines outstanding academic credentials, extensive practical experience, and a track record of good results. We have a first-rate reputation throughout the country because we listen to our clients, we think about their issues, and we act effectively to achieve their objectives.

We provide expert assistance in the formulation and communication of effective case themes and strategies in civil and criminal matters, and in federal and state courts around the country. The firm focuses on complex matters involving major corporations in every industry, governmental entities, startups, and individuals. The firm's clients include many Fortune 100 companies and prominent individuals.

http://www.alston.com/


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Scarab Consulting enables corporate legal department and law firm clients to focus on practicing law, rather than on managing discovery. For over 10 years, Scarab has been providing clients with customized solutions that encompass the full spectrum of the Electronic Discovery Reference Model (EDRM) from identification and preservation of data, to processing, data analytics, through to hosted review and production.

Blank Rome LLP is one of America’s largest law firms. With nearly 500 attorneys serving clients around the globe, Blank Rome is an international law firm representing businesses and organizations ranging from Fortune 500 companies to start-up entities. Blank Rome helps its clients in all aspects of their businesses. Blank Rome also regularly represents pro bono clients in a wide variety of cases and matters. More information about the Firm is available at www.BlankRome.com.

Sponsored By:

http://www.blankrome.com/


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bestattorneysonline.com, a premium service provided by bestattorneysonline.com LLC, started in 2009, ranks law firms through research and evaluation to identify the most respectable and dedicated law teams in the United States.

Our goal is to provide our users with a new way to locate and contact an attorney or a law firm while providing firms a way to get their image out and into the open. We advertise and provide access to the best law firms around the country and in specific areas and also list a directory showing many opportunities for a client to get in touch with legal help.

Media Partner:

Brief Speaker Bios:

Colin K. Kelly

Colin Kelly is a partner in the firm's Products Liability and Litigation & Trial Practice Groups. He focuses his practice in the areas of product liability and toxic torts and has bet-the-company crisis management experience. Colin has a history of trying difficult cases in difficult places: over the past four years, he has tried multiple cases to verdict for a prominent international chemical company and is serving as National Trial Counsel for a large auto-related product manufacturer. Recently served as national coordinating counsel to a green technology company involved in consumer product-related lawsuits throughout the US and Canada. Colin has litigated complex matters for more than 10 different Fortune 500 companies and has prepared cases for trial in 15 different states. Colin is frequent speaker and author on some of the practical ways that lawyers can ethically use social media to benefit clients before, during and after trial.

Mr. Kelly can be reached at [email protected]


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Mark R. Phillips, Ph.D.

Dr. Mark R. Phillips is the vice president of Trial Partners, Inc. and a senior trial consultant. His expertise includes jury selection, jury decision making, and witness preparation. His firm conducts all types of jury research, including mock trials, focus groups, post-trial juror interviews, and community attitude surveys. Dr. Phillips consults in high-stakes and high-profile civil and criminal matters in state and federal jurisdictions throughout the country. He has published research on jury decision making, jurors' perceptions of minority attorneys, and eyewitness memory. His clients include many Fortune 100 companies, government entities, and prominent individuals.

► For more information about the speakers, you can visit: http://www.knowledgecongress.org/event_2014_Ethical_Issues.html


http://www.knowledgecongress.org/event_2014_Ethical_Issues.html

Brief Speaker Bios:


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► For more information about the speakers, you can visit: http://www.knowledgecongress.org/event_2014_Ethical_Issues.html

Larry Lieb, ACE, CCA

Larry Lieb has worked as a subject matter expert in the field of computer forensics and electronic discovery since 1998. Larry's practice focuses on the application of best practices and technology to maximize the limited dollars parties involved in litigation have available for substantive legal work while minimizing wasted expense in discovery. Larry can analyze, report and testify on evidence of activities that have taken place using computers and smartphones.

Jeffrey N. Rosenthal

Jeffrey N. Rosenthal is an attorney with Blank Rome LLP. He concentrates his practice in the areas of complex corporate and commercial litigation, and specializes in cases involving technology. He serves both corporate and individual clients in a wide variety of industries including computer software, banking and securities/shareholder actions. Since 2012, Mr. Rosenthal has written the Cyberlaw column for The Legal Intelligencer—America’s oldest daily law journal—regularly publishing articles on the non-traditional uses of social media and its implications for modern practice. He has also lectured on the topic of alternative dispute resolution. Mr. Rosenthal can be reached at [email protected].

http://www.knowledgecongress.org/event_2014_Ethical_Issues.html


While the use of social media provides an array of opportunities for companies to market their services and connect with other companies and potential clients, attorneys (both in-house and outside counsel) have unique ethical duties that pose significant risks and require additional practical restraints on unfettered and unfiltered social media use to benefit clients.

This course offers in-house counsel & attorneys the opportunity to be equipped with a better understanding of ethical issues surrounding social media information, advertising, and use by attorneys.

The Knowledge Group has assembled a panel of distinguished practitioners and thought leaders who will share their expertise on how to approach the issues surrounding the subject. The panelists will examine the pros and cons of social media and will also share practical guidance on how to effectively use social media while preventing potential pitfalls.


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Featured Speakers:


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Colin K. KellyPartnerAlston & Bird LLP

Jeffrey N. Rosenthal AttorneyBlank Rome LLP

Larry Lieb, ACE, CCAChief Innovation OfficerScarab Consulting

Mark R. Phillips, Ph.D.Vice President and Senior ConsultantTrial Partners, Inc.

I. Ethical Use of Social Media During Trial (30 mins)

II. Practical Tips on Using Social Media at Trial (15 mins)

III. Is it Ethical to be Facebook “Friends” with a Judge? (25 mins)

IV. Civil Discovery of Social Media: Give Me All Your Tweets! (35 mins)


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Agenda

Ethical Use of Social Media During Trial


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The Social Media Revolution


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Social Media Revolution – Facebook


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The Current Trend is Not Whether to Use Social Media During Trial but How?

•Twenty-five percent of all Facebook users do not use any privacy settings, which is why social media searches often bear fruit in jury selection. Social Media Statistics and Facts 2012, GO-GLOBE.COM (Oct. 30, 2012).

•How far can a lawyer go in researching jurors likes, dislikes, pictures, opinions and beliefs without crossing the ex parte ethical line?


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Voir Dire or Voir Google?

“Jury duty 2morrow. I may get 2 hang someone … can’t wait …”

“Guinness for lunch break. Jury duty ok today.”

These are real Facebook postings from a juror in a federal tax evasion case. See United States v. Ganias, 2011 WL 4738684, at *2 (D. Conn. Oct. 5, 2011).


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A Brief History on Social Media Research During Voir Dire

• Less than a decade ago many courts believed that scouring the internet for information on potential jurors was an invasion of privacy. In 2006, a Federal Court made headlines when it banned internet inquiries into prospective jurors in a highly publicized government corruption trial. See United States v. Sorich, 427 F. Supp. 2d 820 (N.D. Ill. 2006) aff'd, 523 F.3d 702 (7th Cir. 2008).

• 2010: In Carino v. Muenzen, a New Jersey court granted a new trial where one of the attorneys was barred from using his laptop during jury selection. Carino v. Muenzen, 2010 N.J. Super. Unpub. LEXIS 2154, at *27 (N.J. Sup. Ct. App. Div. Aug. 30, 2010).


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Current Ethical Framework For Juror Investigation (Social Media)

• Model Rule 3.5: [a] lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; [or] (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law.”


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Other Guidance?

• New York City Bar Association formal opinion –Issued a formal opinion in 2012 that supports attorney access to social media websites for juror research “as long as no communication occurs between the lawyer and the juror as a result of the research.” Formal Op. No. 2012-02.

• Philadelphia Bar Association—Issued guidance that attorneys cannot use third parties to “friend” witnesses or jurors on social media that a lawyer himself could not friend or contact. See Op. 2009-02, Philadelphia Bar Association Professional Guidance Committee (March 2009).

• Other bar associations hold internet research by attorneys is ethical, so long as it there is no direct communication with jurors.

• Ethics Op. No. 843, New York State Bar Association (Sept. 10, 2010); • Formal Op. No. 743, New York County Lawyers’ Association (May 18, 2011);• Formal Op. No. 2013-189, Oregon State Bar Association; and• Legal Ethics Op. No. 2011-2, San Diego County Bar Association (May 24, 2011).


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Juror Misconduct Involving Social Media Use

• Juror’s Facebook page was configured to be accessible by the public at the time, and the media discovered a status posted in jury deliberations stating, “Stay tuned for the big announcement on Monday everyone!” On appeal, the court affirmed the conviction, noting that all the comments online “were nothing more than harmless ramblings having no prejudicial effect.” United States v. Fumo, 103 A.F.T.R.2d 2009-2727, at *64 (E.D. Pa. June 17, 2009).

• Arkansas capital murder conviction was overturned due to social media misuse by a juror during trial. See Dimas-Martinez v. State, 385 S.W.3d 238 (Ark. 2011). Juror at issue tweeted repeatedly during trial and deliberations, even after receiving a reprimand from the bench.


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Practical Tips on Using Social Media at Trial


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What types of information should attorneys be monitoring?

• Likes and Dislikes• Friends and Followers• Education• Employment• Social media activity level• Personal blogs• Websites


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What common sites should attorneys be monitoring?

• Facebook• Twitter• LinkedIn• Importance of

browsing anonymously


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What tools are available to attorneys?

• Jury Pad (or other iPad/iPhone applications)

• Search engines (Google, Bing, etc.)


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What other steps are available at trial?

• Petition court to give detailed jury instructions on social media

• Monitor jurors social media use throughout trial and deliberations


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Jurors are more tuned into media than ever before, especially social media…


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And they have trouble “disconnecting” from social media…


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Actual Question on Juror Questionnaire

“Will you have any trouble following the Court’s instruction to avoid doing any independent research about anything or anyone connected to this case, and to avoid speaking to anyone about this case, even on the Internet?”


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Jurors cannot resist the temptation to research a case despite the Court’s instruction to avoid doing so…and the problem is getting worse


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Actual Juror Quotes

●“Yes, I would have trouble not doing independent research about the case…but I wouldn’t talk to anyone about it, though.” (October 2010)

●“I will try my best, but I think it’s an unrealistic expectation.” (August 2011)

●“Intoxication sometimes makes me say things I should not be saying.” (August 2011)

●“As a juror, I need to know the history of the case.” (May 2012)

●“I believe I will feel it necessary to do my own investigating, as I see the courtroom as a ‘show’ and not actual information. The better I could inform myself, the better I could decide.” (May 2012)


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Actual Juror – Facebook Page


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Actual Juror – Facebook Page


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Addressing the Risks of Social Media During Jury Selection

● Ask judge to provide strong oral admonishment before jury selection using simple, plain language● Explain why it is important (e.g., the need for a fair trial based solely on evidence presented

in court)● Explain the consequences of using social media during the trial (e.g., personal fines, being

held in contempt of court, causing a mistrial)

● Counsel and/or the judge should explore jurors’ use of social media during voir dire● Example: “How many of you Tweet or log on to your Facebook account on a daily basis?”● Try to engage in interactive dialogue with jurors about the problems of social networking

during jury service


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Addressing the Risks of Social Media During Jury Selection (continued)…

● If a juror questionnaire is used, provide a written admonishment in more than one place on the juror questionnaire

● The following standard juror questionnaire used in all asbestos cases in Los Angeles, Orange, and San Diego Counties has an admonishment in three places


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LAOSD JQ – Cover Page (1st Admonishment)


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LAOSD JQ – Page 7 (3rd Admonishment)


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Is it Ethical to be Facebook “Friends” with a Judge?


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Why Can’t We Be Friends, Your Honor?

• What is it about judges and lawyers as online “friends” that raise such concerns?

– When a judge creates an online connection with a lawyer it places that individual in a “special class” of lawyers who are designated as that judge’s “friend.”

– As contrasted with lawyers who choose not to ask the judge to accept them as a “friend” (or who do not participate in social media), this former group appear to the public as being in a “special relationship” with the judge.


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• ABA Formal Opinion 462 (Feb. 21, 2013)– Judge’s Use of Electronic Social Media.

• Defined electronic social media (“ESM”) as referring to any internet-based social networking site that “require[s] an individual to affirmatively join and accept or reject connection with a particular person.”

• Gives judges wide latitude to engage in online behavior within existing Model Code of Judicial Conduct.

– “A judge may participate in [ESM], but as with all social relationships and contacts,

a judge must comply with the relevant provisions of the Code . . . and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impartiality”


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ABA Formal Opinion 462

• ABA cautioned judges that ESM connections may “rise to the level of [a] social relationship or the perception of a relationship that requires disclosure or recusal.”

– Judge who has an ESM connection with a lawyer with a pending or impending matter must evaluate whether to disclose it prior to or at the initial appearance before the court.

• “In this regard, context is significant.”

• “Because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose an ESM connection. [But i]f that connection includes current and frequent communication, the judge must very carefully consider whether that connection must be disclosed.”


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Taking it to the States

• Individual state ethics panel(s)—not the ABA—are the final arbiters of permissible judicial conduct. (ABA Formal Op. 462)

– To date, ten (10) states have issued ethics opinions on use of social media by judges


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Source: National Center for State Courts, http://www.ncsc.org/Topics/Media/Social-Media-and-the-Courts/State-Links.aspx?cat=Judicial Ethics Advisory Opinions on Social Media, (last visited January 12, 2014)


States Cautioning ESM Use

• Massachusetts (Opinion No. 2011-6)– Allows judges to “friend” attorneys from whom they would recuse themselves if those same

attorneys appeared before the court.

• Florida (Opinion No. 2009-20) • Oklahoma (Opinion No. 2011-3)

– Judges cannot add lawyers who may appear before them as “friends”—or permit such lawyers to add them as “friends.”


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States Supporting ESM Use• New York (Opinion No. 13-39)

– “[M]ere status of being a ‘Facebook friend,’ without more, is an insufficient basis to require recusal.”

• Ohio (Opinion No. 2010-7) – Allows judges and lawyers to be online “friends”—so long as it is “done carefully” to ensure

compliance with the Code.

• South Carolina (Opinion 17-2009)– Allowing judges to be Facebook friends with law enforcement officers and employees


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States Supporting ESM Use (Cont.)

• Maryland (Opinion No. 2010-07) • Kentucky (Opinion No. JE-119)

– Similar to New York: advising judges using social networking sites to “proceed cautiously” or be “extremely cautious” on such sites

• Washington (Opinion No. 09-05)– Judge not specifically prohibited from blogging ,but urging “caution” as to how blog is used and

comments responded to


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California Takes a Middle-Ground Approach

• California (Opinion No. 66)

– Permitting judges to include lawyers who may appear before them in their online community

• BUT instructing judges to refuse such connections if the lawyer has a case pending before the judge; judge must actually “unfriend” such individuals


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What About

• Judges do not have to remove attorneys from a LinkedIn group—even if they have a pending case—because LinkedIn “limits the ability to post anything more personal than [what] can be found on a resume or curriculum vitae.”

– “Level of connection on LinkedIn is more akin to what is seen between participants in a bar association subsection or an alumni association.”

– “[D]anger of receiving an inadvertent ex parte communication is lessened on LinkedIn since there is not the ability to post daily musings.”


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Source: Adrienne Meiring, Counsel to the Indiana Commission on Judicial Qualifications, Ethical Considerations of Using Social Networking Sites,Indiana Court Times (December 31, 2009) available at http://indianacourts.us/times/2009/12/ethical-considerations-of-using-social-networking-sites/ (last visited January 12, 2014)


http://indianacourts.us/times/2009/12/ethical-considerations-of-using-social-networking-sites/

Takeaways

• The ABA generally permits attorneys and judges to have online ESM relationships

• But STATES are the final arbiters of permissible judicial conduct– Know your state’s prevailing ethics opinion(s)– If no formal opinion, know controlling case law

• LinkedIn may be subject to less scrutiny


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The Florida Approach

• The Florida Bar has issued an ethics opinion forbidding judges from accepting Facebook “friends” or LinkedIn “connections” from any lawyer who might appear before them. -Judicial Ethics Advisory Opinion: 2009-20.

• September 2012 – Florida Appeals Court ruled that judge can be recused from a case for being Facebook “friends” with a prosecutor who appears before him in court. -Domville v. State of Florida (currently pending in the Fl. Sup. Court).


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Discussion

1. Which is the better approach? Which approach demonstrates the current trend?

2. What do the model judicial canons tell us?

3. Is this a Digital Double Standard? Should the ban against being Facebook friends with a judge apply to all social interactions between lawyers and judges (the Rotary Club and Garden Club too)?

4. Does limiting social interactions between lawyers and judges increase fairness or isolate judges further and therefore put them out of touch with their communities?


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What is the Better Approach? Which Approach Demonstrates the Current Trend?


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What Do The Model Judicial Canons Tell Us?

CANON 1A judge shall uphold and promote the, independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

CANON 2 A judge shall perform the duties of judicial office impartially, competently, and diligently.

CANON 3 A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.


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http://www.americanbar.org/content/aba/groups/professional_responsibility/publications/model_code_of_judicial_conduct/mcjc_canon_1.html

http://www.americanbar.org/content/aba/groups/professional_responsibility/publications/model_code_of_judicial_conduct/model_code_of_judicial_conduct_canon_2.html




A Digital Double Standard?


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Does Limiting Social Interactions Increase Fairness or Isolate Judges?


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Civil Discovery of Social Media: Give Me All Your Tweets!


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Background on Discovery of Social Media

• Over the past two decades, prompted mostly by e-mail, e-discovery has exploded.

• In response, discovery costs have increased exponentially and placed a greater burden on companies to retain ESI data.


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Federal and State Rules Adapt

• First e-discovery amendments to Federal Rules in December 2006

• New 2013 proposed amendments to FRCP Rule 26 and 34, among others

• States making similar adaptions to rules


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New Amendments to Federal Rules

• Proposed FRCP amendments aimed at “reducing the potential to impose unreasonable burdens by objections to requests to produce”

• Proposed FRCP Rule 37 allows spoliation sanctions if a party is "irreparably deprived” of the ability to “present or defend its case, even in the absence of willful or bad faith conduct”


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View from the Trenches


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One Paper or Email Universe versus Many New Universes

• “Paper discovery only days” mentality still pervades among some litigators: – Turning a team of associates loose on a chronologically sorted photocopy set of the client’s

original paper documents, or email communications, should allow one to discern how one’s client’s good relationship with their opponent turned bad and why.

• Electronic discovery “universes” currently number in the 10s to 100s (e.g. Facebook/ Instagram/Linkedin) and continues to expand on a regular basis.

• Can all of these universes possibly contain relevant evidence?


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Evidence Directly Recoverable From Local Laptop / Desktop Computers and iPhone / Android Phones


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Additional Types of Recoverable Evidence that Computer and Smartphone Usage Leaves Behind


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• The search terms that a user typed into Google and other search engines

• The make and model of smartphone used to create pictures and video files, as well as the longitude and latitude of where the person was standing when the pictures or movie files were created.


Recoverable Location Information, Including Time & Date Stamps from Laptop/ Desktop Computers and iPhone / Android Phones


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Timeline Analysis


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Filtering for Potentially Relevant Evidence


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• Building a key word list including:– Search terms the computer owner used with Google and Yahoo.– Website names– Email addresses– Individuals’ names and locations

• A timeline of key word responsive evidence can be created in order to better focus analysis.


Filtering for Irrelevant Evidence Upfront to Avoid Material Wastes of Expense


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Work with your team to build a list of “irrelevant” filters and key words.

1)Relevant date range (to exclude irrelevant periods)

2)Project numbers

3)Locations and addresses

4)People’s names

5)Email domains (@irrelevantparty.com)


War Stories


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• Forensic image made of former employee’s (“FE”) company laptop. • Analysis reveals that one month prior to giving notice, the FE logs in to Facebook on company

laptop to chat with new employer.• Recovered Facebook chat communication includes discussion of ongoing work with new

employer including meetings with customers of now former employer.• Analysis of location information reveals times and dates of multiple meetings at new employer’s

offices months prior to resignation.


War Stories


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• A forensic investigation of a laptop identified a complete iPhone backup within the iTunes folder on the laptop itself.

• The iPhone backup included a calendar of key meetings, contacts, call history and text messages

• From this information, I was able to build and report on a chronology of meetings including the parties involved and their locations.

Practice Point: Complete iPhone backups can be recovered from the local iTunes folder on a laptop or from the Apple service known as iCloud.


An Item to Consider


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Although many organizations will lockdown or prevent employees from installing applications of their own choosing on company provided computers, similar safeguards are most oftentimes not put into place on company issued iPhone or Android phones.

iPhone and Android phones are powerful computers themselves, so to the extent one is concerned about the potential exfiltration of sensitive information, it may make sense to address this apparent disparity in I.T. security polices at your organization.


Can you ethically instruct a client to “clean up” their Facebook page?


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• Ethics Opinion 745 (July 2, 2013) – New York County Lawyers’ Association

– Attorneys may need to advise what clients should or should not post on social media

• Mere fact that an attorney provides such advice does not violate any ethical obligations

• Attorney may instruct client to use the highest level of security on social media pages

• Attorney can ethically assist in formulating a corporate policy on social media issues


Removed, But Not Deleted


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– “Taking Down” Information

• Attorneys may advise clients on “taking down” or removing already existing information from social media sites, which could implicate spoliation issues if information is destroyed, rather than removed (from the public portion of a site)

– Attorneys need to understand particular type of electronic evidence—and the circumstances under which items are destroyed—before giving advice regarding preservation


Ethics Opinion 745


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• Duties to not suppress/conceal evidence implicate questions of substantive law outside purview of Ethics Opinion 745

– BUT NYCLA observed that such laws may make it an offense to “destroy material for the purpose of defeating its availability in a pending or reasonably foreseeable proceeding, even if no specific request to reveal or produce evidence has been made.”


When Cleaning Up Gets Messy


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The Case of Matthew B. Murray


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• Former Vice President of Virginia Trial Lawyers Association

• Shareholder and branch manager of the Charlottesville office of Allen, Allen, Allen & Allen, P.C.

• Represented Plaintiff Isaiah Lester against defendant Allied Concrete for the death of his wife after a cement truck crossed the center line and tipped over the Lesters’ car. (Lester v. Allied Concrete, Case No. CL08-150 & CL09-223, Circuit Court of City of Charlottesville, Virginia)


Where Things Got Messy…


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• Murray instructed his client, through his assistant, to “clean up” his Facebook account.– “We do not want blow ups of other pics at trial so please, please clean up your

Facebook and MySpace!”

• As a result, Lester deleted 16 photos—but all were eventually given to Allied attorneys before trial.

– Included a picture of Lester with a beer can wearing a T-shirt that said: “I (heart) hot moms.”– Jurors were told about the scrubbed photos

• Emails between Murray, the paralegal and Lester were not made available to the court until after the trial.

– Murray attributed the error to the paralegal. – Murray later told the Court he concealed email out of fear a continuance would be granted


The Result:


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• As a sanction, the trial judge ordered Murray and Lester to pay $772,000 (Murray’s share was $544,000) to the lawyers for Allied Concrete for their legal fees.

– Possibly the largest eDiscovery sanction penalty ever leveled directly against an attorney (Next Gen eDiscovery Law & Tech Blog, Nov. 15, 2011, available at http://blog.x1discovery.com/2011/11/15/facebook-spoliation-costs-lawyer-522000-ends-his-legal-career/)

• Judge also slashed $8.5 million jury award—but Virginia Supreme Court reinstated full verdict in January of 2013.

• Murray agreed to five (5) year suspension– Suspension order says Murray violated ethics rules governing candor toward the tribunal,

fairness to opposing party and counsel, and misconduct.

• Murray resigned from Allen, Allen, Allen & Allen, P.C. on July 25, 2011. (http://www.allenandallen.com/matthew-b-murray-resigns.html)


One more example


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• Gatto v. United Air Lines, 2013 U.S. Dist. LEXIS 41909 (D.N.J. Mar. 25, 2013)– Frank Gatto, baggage handler at John F. Kennedy Airport, claimed he suffered serious

injuries when set of stairs used for aircraft refueling crashed into him on Jan. 21, 2008.

– Defendants sought social media discovery in July 2011, asking for “wall posts, comments, status updates or personal information” posted or made by Gatto on Facebook or any other site from 2008 through the present.


Just The Facts


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• After initially refusing, Gatto agrees to provide Facebook access to defense counsel

• Defense counsel tries new password but account is unchanged; cannot access site

• Facebook notified Gatto his account was accessed by unknown IP address in New Jersey

• Gatto, in turn, notifies his attorney who reaches out to defense counsel (who is on vacation)

• Gatto agrees to download account contents and provide certification that nothing has changed


Just The Facts (cont.)


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• Two weeks later, Gatto’s counsel emailed defense counsel to say Gatto had previously deactivated account and could not reactive it.

• Gatto claimed he deactivated account on December 16 because unknown people accessed it (claims he did not know it was defense counsel until afterward)

• Facebook automatically deleted the data fourteen (14) days later.

• Lost postings would have helped refute Gatto’s damages claim (i.e., showed trips he had taken, social activities and eBay business).


The Result:


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• Gatto sanctioned for spoliation

– Magistrate Judge Steven C. Mannion rejected argument deletion was “accidental”• “Even if [Gatto] did not intend to permanently deprive the defendants of the [data he]

intentionally deactivated the account [and failed] to reactive [it] within the necessary time period [causing permanent loss of evidence] that is potentially relevant to [Gatto’s] damages and credibility.”

– Defendants entitled to adverse inference instruction

– Judge declined to award legal fees because destruction did not appear “motivated by fraudulent purposes or diversionary tactics, and the loss of evidence will not cause unnecessary delay.”


Takeaways


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• Providing client advice on social media does not violate any ethical obligations

• Attorney may instruct client to use highest level of security on social media pages

• Attorney can ethically assist in formulating a corporate policy on social media issues

• Removal, not deletion, is appropriate when advising clients to “clean up” social media

• Severe discovery sanctions are possible


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Q&A:


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