Social Media Law & Policy Report

Reproduced with permission from Social Media Law & Policy Report, 03 SMLR 17, 04/29/2014. Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

Practical Tips for Avoiding the Dangers of Using Social Media in Litigation
documents. Social media can also provide fertile ground for research on a potential juror. You need to counsel your clients that what they do and say on the Internet can be discoverable, even if a social media account is private. Recent case law permits discovery on private social media accounts and imposes sanctions on attorneys and clients who do not properly preserve their social media accounts. However, first, you need to understand what some of the dangers of social media usage during litigation can be so that you may counsel your clients regarding these dangers.

BY SARAH S. BROOKS

AND

JESSICA MULLEN

t hardly needs to be said that social media is everywhere and is used by everyone, even lawyers. While law may have been initially slow to adopt social media, LinkedIn, Twitter and Facebook are now used by many lawyers to promote their own practices and to conduct research on their opponents, their own clients and even potential jurors. What you or your opponent say on social media can be especially important in litigation. In any litigation, you can be sure that your opponent will immediately search the internet for usable information about you and your client and will explore your respective Twitter, Facebook and LinkedIn pages for useful information that may be used against you and your client in the litigation. If you are not doing the same, or are not aware of the pitfalls, you need to be. Your research on the Internet and through publicly available social media outlets can lead to helpful impeachment evidence for a deposition or trial. Alternatively, your clients postings on the Internet can provide impeachment evidence for the other side or form the basis for a motion to compel

What Are Some of the Dangers of Social Media and How Can You Avoid Them?
1)Counseling Your Client From the Beginning Regarding Public and Private Social Media Accounts
From the beginning of any litigation, you need to ask your client whether the company has an official Facebook, LinkedIn or Twitter account, or whether individual employees of the company may post potentially relevant information on his/her personal social media account, whether it is public or private. Public social media accounts are clearly fair game in any litigation. Courts have held that there is no expectation of privacy in social networking website postings when a user creates a public account.1 Social media website postings and communications are freely discoverable without court order when the users account is public. 2 Therefore, it is common to use such information for impeachment during a deposition or at trial, or
1 See, United States v. Meregildo, 883 F. Supp. 2d 523 (S.D.N.Y. 2012) (holding a users public postings and information not protected by the Fourth Amendment and the government is not precluded from viewing a users social networking website profile absent a showing of probable cause); Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010) (Facebook and Myspace account users consent to the fact that their personal postings will be shared with others and users who know that their information may become publicly available cannot claim that they have a reasonable expectation of privacy in such information). 2 See, e.g., Fawcett v. Altieri, 38 Misc. 3d 1022 (N.Y. Sup. Ct. 2013) (holding information in the open on social media accounts is freely discoverable and does not require court orders to disclose it).

Sarah Sheldon Brooks is a shareholder in Stradling Yocca Carlson & Rauth, P.C.s Intellectual Property and Litigation departments. Brooks is an experienced trial attorney who has handled intellectual property legal disputes for some of the nations largest companies in a variety of industries. Jessica Mullen is an associate in Stradling Yocca Carlson & Rauth, P.C.s business and securities litigation practices. She received her J.D. from the George Washington University Law School.

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2 to support a motion to compel where documents or information were alleged not to exist. For example, in Romano v. Steelcase, Inc., the defendant contended that, contrary to plaintiffs claims of injury, a review of the public portions of her Myspace and Facebook pages revealed that she maintained an active lifestyle and had traveled during the time period she claimed that her injuries prohibited such activity.3 Therefore, the court found there was a reasonable likelihood that the private portions of her sites might contain further evidence regarding her activities and enjoyment of life, all of which were material and relevant to the defense of her personal injury action.4 The court granted defendants motion to compel production of current and historical Facebook and Myspace postings, including deleted material.5 While public social media accounts are clearly fair game, your client may be surprised to learn that even the nonpublic aspects of their profiles are subject to disclosure, despite privacy settings restricting who may view their profile and posts.6 Generally, social networking site content is neither privileged nor protected by any right of privacy.7 As with other sensitive material produced in discovery, the account users legitimate privacy or confidentiality concerns can be dealt with through an appropriate protective order but do not shield social media postings from disclosure during a litigation.8 Therefore, as long as the evidence is relevant to the lawsuit, courts allow discovery on social media accounts, even when the account is private.9 For inRomano v Steelcase Inc., 30 Misc. 3d 426, 427 (N.Y. Sup. Ct. 2010). 4 Id. at 432. 5 Id. at 435. 6 See Reid v. Ingerman Smith LLP, 876 F. Supp. 2d 176 (E.D.N.Y. 2012) (subscriber has no justifiable expectation that his or her friends will keep the profile private; the wider the circle of friends, the more likely the posts will be viewed by someone the subscriber never expected to see them); Higgins v. Koch Development Corp., No. 3:11-cv-00081 (S.D. Ind. July 5, 2013) (granting motion to compel; finding no support for proposition that setting a Facebook profile to private entitles a person to a greater expectation of privacy or can act as a shield to discovery); Romano v. Steelcase Inc., 30 Misc. 3d 426 (N.Y. Sup. Ct. 2010) (plaintiff cannot hide relevant information behind self-regulated privacy settings.). But see United States v. Meregildo, 883 F. Supp. 2d 523 (S.D.N.Y. 2012) (social media users postings using more secure privacy settings reflect the users intent to preserve information as private and may create a reasonable expectation of privacy).
7 Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. Cal. 2012). 8 See EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010) ([M]erely locking a profile from public access does not prevent discovery.). 9 See E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010) (ordering production of profiles and communications from Facebook and Myspace accounts); Keller v. National Farmers Union Property & Cas. Co., No. 9:12-cv-00072 (D. Mont. Jan. 2, 2013) (social networking information is not protected from discovery merely because a party deems the content private); Bass v. Miss Porters Sch., No. 3:08-cv-01807 (D. Conn. Oct. 27, 2009) (noting that defendant and Facebook entered into a stipulated agreement leading to Facebooks release of more than 750 pages of wall postings, messages, and pictures); Howell v. Buckeye Ranch, Inc., No. 2:11-cv-01014 (S.D. Ohio Oct. 1, 2012) (relevant information in the private section of a social media account is discoverable); 3

stance, in Higgins v. Koch Dev. Corp., a personal injury action against a water park, the court found information in the plaintiffs private Facebook profiles was relevant to ascertaining proper damages.10 In granting the defendants motion to compel, the court noted plaintiffs offered no cases that supported the proposition that setting a Facebook profile to private entitles a person to a greater expectation of privacy or can act as a shield to discovery. As another example, in Bass v. Miss Porters School, the court ordered production of more than 750 pages of Facebook wall postings, messages and pictures relevant to alleged teasing and taunting in a cyber-bullying case.11 Litigants may subpoena social network site providers to obtain information stored on private accounts.12 For example, in an action for trademark infringement, trade libel, defamation and contractual interference, a court allowed the plaintiff to serve subpoenas to Facebook and Twitter to help identify unknown defendants who allegedly used a website to anonymously publish false, defamatory and infringing statements and to conduct other unlawful activity targeted at plaintiff and its website.13 When drafting discovery requests, keep in mind that courts are less likely to view social media discovery requests as unwarranted fishing expeditions14 if requests are limited to dates and topics relevant to the events at issue. For instance, in EEOC v. Simply Storage Mgmt., a sexual discrimination action brought on behalf of employees against an employer, the court ordered production of the employees postings, communications and photos from Facebook and Myspace accounts during the relevant time period that related to
Beye v. Horizon Blue Cross Blue Shield, No. 2:06-cv-05377 (D.N.J. Dec. 14, 2007) (ordering production of all Facebook and Myspace entries). Zimmerman v. Weis Mkts., Inc., No. CV09-1535 (Pa. Ct. C.P. May 19, 2011) (noting that the court granted defendants motion to compel discovery of the private portions of plaintiffs social media profiles because defendants made a threshold showing that the public portions contained relevant information). Fawcett v. Altieri, 38 Misc. 3d 1022, 1026 (N.Y. Sup Ct. 2013) (party can obtain discovery of a closed or private social media account on the Internet, by a court order for the subscriber to execute an authorization for their release upon showing content is relevant to facts of the case). Fawcett also quoted Patterson v. Turner Constr. Co., 88 A.D.3d 617, 618 (N.Y. App. Div. 2011), which held that the materials posted on a Facebook page would not be shielded from discovery in a civil matter merely because plaintiff used the services privacy settings to restrict access if the material is relevant to the litigation. The court added that these materials may be subject to production just as material from a personal diary may be discoverable. 10 No. 3:11-cv-00081 (S.D. Ind. July 5, 2013). 11 No. 3:08-cv-01807 (D. Conn. Oct. 27, 2009). 12 Ledbetter v. Wal-Mart Stores, Inc., No. 1:06-cv-01958 (D. Colo. Apr. 21, 2009) (finding information sought in subpoenas issued to Facebook, Myspace, Inc. and Meetup.com was reasonably calculated to lead to the discovery of admissible evidence relating to plaintiffs alleged permanent physical and psychological injuries); see also Bass v. Miss Porters Sch., No. 3:08-cv-01807 (D. Conn. Oct. 27, 2009) (Plaintiff thereafter served a subpoena on Facebook in an attempt to obtain records of her former Facebook account, to which she states she lost access prior to the filing of this action.). 13 Alberta Ltd. v. John Doe 1-50, No. 2:10-cv-00900 (D. Utah Sept. 23, 2010). 14 Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. Cal. 2012). ISSN

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3 any emotion, feeling, or mental state but denied access to their entire accounts.15 Finally, depending on the prevalence of such social media postings and their relevance to the pending litigation, it may be important to advise that the client consult with you prior to making such any social media posting. This is entirely permissible and advisable. For example, the New York State Bar Association (NYSBA) recently issued social media guidelines which state: A lawyer may review what a client plans to publish on a social media website in advance of publication and guide the client appropriately, including formulating a policy on social media usage.16 the defense eventually learned of the photos and brought them to the attention of the court. The court ordered sanctions in the amount of $180,000 for the client and $542,000 for his counsel.23 The attorneys license to practice law was also suspended by the Virginia Bar for five years.24 In another case, Gatto v. United Air Lines, Inc., a plaintiff in a personal injury case deactivated his Facebook account while the case was still pending.25 Then, pursuant to Facebooks policy at the time, it was deleted from their servers 14 days after its deactivation.26 The defense moved for sanctions, alleging that the deactivation amounted to actual suppression or withholding of evidence.27 The court held that the plaintiff failed to preserve relevant evidence and a spoliation inference was appropriate.28 The jury was therefore instructed that it may draw an adverse inference against the plaintiff for failing to preserve his Facebook account and intentional destruction of evidence.29 The takeaway? Advise your client to treat social media just like other forms of evidence when discussing preservation.

2) There Is a Duty to Preserve Social Media

Of course, in any litigation there is clearly a duty to preserve relevant documents from a variety of sources. However, many lawyers and clients do not consider that social media accounts should be preserved just like e-mail or Microsoft Word documents. It is important to counsel your client that messages or status updates sent via Facebook, Twitter and LinkedIn are just like e-mails and should be preserved. Courts are beginning to impose monetary sanctions on attorneys and clients who do not preserve such accounts. Attorneys should update their litigation hold letters to specifically reference a hold on social media accounts. Courts have found that a partys obligation to produce documents within its custody or control not only includes social media content in the companys possession17 but also information in the possession of the companys third-party providers, such as social network site providers.18 Therefore, companies should include social media content generated on company-issued devices in their document retention policies. The recent NYSBA social media guidelines state: Unless an appropriate record of the social media information or data is preserved, a party or nonparty may not delete information from a social media profile that is subject to a duty to preserve.19 You certainly do not want to be in the position of an opponent discovering a publicly available LinkedIn status update or Twitter post that is relevant and responsive and was not produced during the course of the litigation. If the judge determines that you have withheld relevant information from social media accounts, or worse, that your client has deleted it, sanctions can be imposed. 20 A recent case, Allied Concrete Co. v. Lester, is one example of why it is important to be aware of your ethical obligations. 21 In this case, the attorney instructed his paralegal to advise their client to clean up his Facebook page following a request from opposing counsel for access to his clients Facebook data because [w]e dont want any blow-ups of this stuff at trial.22 Consistent with the directive, the client deleted 16 photos, but
15 EEOC v. Simply Storage Mgmt., 270 F.R.D. 430, 435-36 (S.D. Ind. 2010). 16 See NYSBA Guideline No. 4B (2014), available at http:// www.nysba.org/workarea/DownloadAsset.aspx?id=47547. 17 Arteria Property Pty Ltd. v. Universal Funding V.T.O., Inc., No. 2:05-cv-04896 (D.N.J. Oct. 1, 2008). 18 Flagg v. City of Detroit, 252 F.R.D. 346, 352-55 (E.D. Mich. 2008). 19 See NYSBA Guideline No. 4A (2014). 20 See NYSBA Guideline No. 4A (2014). 21 Allied Concrete Co. v. Lester, 285 Va. 295 (2013). 22 Id. at 302.

3)Be Careful When Using Social Media for Litigation Research and Impeachment
Finally, just as your opponent can use the Internet to research you and your client, you can and should use social media in any litigation to your advantage to gather information about your opponent. The recent NYSBA social media guidelines recognize that publicly available social media profiles or posts may be used in a litigation and it is entirely ethical: A lawyer is ethically permitted to view the public portion of a persons social media website, profile or posts, whether represented or not, for the purpose of obtaining information about the person, including impeachment material for use in litigation.30 Conducting such litigation research has its pitfalls, however. To some, it may seem obvious that in conducting your litigation research you should not attempt to access social media profiles and information that is not publicly available. However, many attorneys have done just that. The San Diego County Bar Association (SDCBA) addressed in an ethics opinion a situation where one attorney in conducting investigative research sent a friend request to employees of an opponent.31 The SDCBA found that an attorneys duty not to deceive prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request. However, it is permissible to friend an individual who is not represented by counsel as long as the purpose of the request is clearly disclosed.
Id. In re Murray, VSB Docket Nos. 11-070-088405 and 11070-088422 (July 17, 2013), available at http://www.vsb.org/ docs/Murray-092513.pdf. 25 Gatto v. United Air Lines, Inc., No. 2:10-cv-01090 (D.N.J. Mar. 25, 2013). 26 Id.. 27 Id. 28 Id. 29 Id. 30 See NYSBA Guideline No. 3A (2014). 31 San Diego County Bar Association, Legal Ethics Opinion 2011-2, available at https://www.sdcba.org/index.cfm? pg=LEC2011-2.
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4 In using social media for litigation research, you should also be especially careful when it comes searching profiles on LinkedIn. What you may not know is that LinkedIn automatically generates a notice when you visit a profile of an individual that informs the individual that someone has viewed their profile. If you havent adjusted your privacy settings, this notice will specifically identify you by name. Recently, an attorney was disciplined for looking at a jurors profile on LinkedIn because the automatically generated notice on the right hand side of LinkedIn was found to be an improper communication with a juror.32 Therefore, the best option when conducting research on jurors or rep32 New York City Bar, Formal Opinion 2012-2, available at http://www.nycbar.org/ethics/ethics-opinions-local/ 2012opinions/1479-formal-opinion-2012-02.

resented parties on LinkedIn is to adjust your privacy settings on so that you are anonymous. Although a notice will still be generated saying that someone visited their profile, your name will remain anonymous. With this knowledge, you are now armed with the tools to successfully conduct social media litigation research and to counsel your client in avoiding the pitfalls.

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