Litigators’ Tool Box: Social Media (2011)

April 11-13, 2011 www.techshow.com

Session Title

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PRESENTED BY THE

Litigators’ Toolbox: Social Media

Presenters

Judge Herbert Dixon Sharon Nelson

Antigone Peyton


Social Media


Social Media •  Internet forums •  Weblogs •  Social blogs •  Microblogging •  Wikis •  Podcasts •  Pictures •  Video •  Ratings •  Social bookmarking


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


Some Global User Stats

•  Twitter – 190 million •  LinkedIn – 75 million •  Plaxo – 40 million •  MySpace – 65 million


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).


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


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”)


Social Media In Court •  Criminal proceedings-

sentencing, alibi •  Evidence to discredit

witness/impeachment •  Investigation tool-

authorities, lawyers, and jury consultants


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


Regular Use Of Social Media

•  Criminal law •  Employment law •  Personal injury law


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


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


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


New York Bar Association

•  (Sep. 24, 2010) Ethics opinion

•  Attorneys can comb through PUBLIC areas of social media sites


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


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


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


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


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


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


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


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


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


What Does It Cost?

•  $500 for each account

•  $200 for expedited response

•  30 days response time


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




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


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


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


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


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.


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.


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


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


Authentication

•  Did you post this? •  Did you see this post? •  Context and content

can authenticate •  Expert testimony •  Computer forensics if

data was deleted


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


Prosecutors Embracing Social Media

•  Cameron County TX •  Searching SM sites of

prospective jurors •  “Googling” them •  Keeping up with the

defense in jury investigations

iJuror


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?


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Litigators’ Tool Box: Social Media (2011)