SOCIAL MEDIA CLE OUTLINE FOR PRESENTATION Edward T. Hinson, Jr.

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1 SOCIAL MEDIA CLE OUTLINE FOR PRESENTATION Edward T. Hinson, Jr. 1. WHAT IS SOCIAL MEDIA? [10 minutes] a. Defining social media is difficult, because it s a moving target. As technology and our connectivity constantly grows and evolves, different social media platforms develop and allow people to do different things. Once upon a time, if you wanted to communicate with someone over the internet, you d have to start your own website, or maybe join a forum or a chat room where you could send messages to a closed group of people. Now, you can post videos or photographs or articles or comments that can be visible to anyone on the internet. So what do we mean now by social media? b. In October 2012, the Sedona Conference, which is one of the country s leading authorities on technology and the law, published a Primer on Social Media. (You can download the primer for free the web address is in your materials.) According to the Sedona Conference s Primer, Social Media is best defined by the characteristics of its content in other words, by what it does, rather than what it is. Using that criteria, social media typically features content that is: i. Shared (the content is available to others) ii. Interactive (participants are both users and suppliers of content) iii. Internet-Based (the content is available on the Web) iv. Personal (the content represents personal commentary, art, opinions, etc.) v. Informal (generally, the content is conversational, unedited, and unstructured. These, of course, are exactly the characteristics that make social media both powerful and problematic: it is personal information which is shared on the web, for others to view, use, and comment on, with none of the editing or formal gateways that we might apply in the context of other forms of mass media. What s more, once shared, information seems to be entirely indelible. In other words, communicating on social media can be a lot like being on live television where the show is all about you, there is no script, your audience can talk back, and no one ever forgets what you said. 2. WHY DO WE, AS TRIAL LAWYERS, CARE ABOUT SOCIAL MEDIA? a. Overview (bullet list on slide): - 1 -

2 i. It is a relatively cheap and easy way to reach a massive number of people. ii. It is the new world order, defining our clients needs and creating a host of new legal problems. iii. It is critical to evidentiary issues. iv. The ABA has suggested that we may have a duty to educate ourselves. b. Social media is a relatively cheap and easy way to reach a massive number of people, including potential new clients. i. Statistics regarding who s using the major sites: 1. Facebook: Over 1 Billion registered users with 3.2 Billion Likes and Comments everyday. 2. Twitter: Over 175 Million Tweets sent per day in LinkedIn: 147 Million members worldwide. 4. YouTube: More than 72 hours of video are uploaded to Youtube every minute, and 800 million unique users visit the site monthly. 5. World of Warcraft: The approximately 11 million users have spent around 50 billion hours playing since a. To be clear 50 billion hours translates to approximately 5.7 million years. To put that into perspective, Lucy, one of the oldest humanoid skeletons ever located, is only 3.2 million years old. ii. According to a recent survey conducted in 2011 and 2012 by the ALM: 20 percent of law firms have a full time social media specialist on staff, with 40 percent reporting that social media has helped them to land new business. 1. Size does not affect the efficacy of social media. Nearly a quarter of respondents to the survey (23 percent) worked at firms with more than 1,000 lawyers; 29 percent at firms with 501 to 1,000 lawyers; just under a third (32 percent) at firms with 76 to 500 lawyers; 6 percent at firms with 21 to 75 lawyers; and 10 percent at firms with 20 or fewer lawyers. The survey did not show any significant difference in the use of social media or social networking sites according to firm size

3 a. ALM Legal Intelligence, Fans, Followers and Connections: Social Media ROI for Law Firms (February 2012). Available (for a fee) online link is in materials. b. See also Catherine Ho, Law firms get into the social media game, WASHINGTON POST (March 11, 2012) (discussing ALM Legal Intelligence survey on social media use in law firms). (link available in materials) 2. This creates a more level playing field for smaller firms to gain access to a wider audience, enabling them to compete more effectively with large firms. c. It s tempting to simply ignore social media. As Facebook users often complain, who wants to know what their friends had for breakfast? However, the impact of social media on the world including our clients is profound. Social media is an increasingly relevant feature of our society, defining our clients needs and creating a host of unique legal problems. i. The easiest example of social media s impact is the 2012 presidential election. According to an October 2012 article in the New York Times, this is the breakdown of followers that each candidate had on various social media sites: Obama/Biden Romney/Ryan Tumblr 1 Unknown Unknown Twitter 20.4 million million Facebook million million YouTube 233,000 21,000 Pinterest 2 42,000 12,000 Instagram 1.4 million 38,000 Spotify 14, Jenna Wortham, The Presidential Campaign on Social Media, NEW YORK TIMES (October 8, 2012). Link is in your materials. ii. Additionally, your clients are using social media. They might be using it in their personal lives or their professional lives. If they are companies, 1 Tumblr does not provide follower counts. 2 This count reflects followers of Pinterest sites maintained by Michelle Obama and Ann Romney

4 they may have their own social media pages, or their employees might be using it. d. Specific legal problems have arisen in all areas of law over social media usage i. Employment law: Employees who have been fired have asserted that their Facebook posts contributed to the decision. Bland v. Roberts, 857 F.Supp.2d 599 (E.D.Va. 2012) (sheriff s deputies asserted that their Facebook posts contributed to decision to fire them, in violation of their First Amendment rights). ii. Labor Law: The National Labor Relations Board has advised, however, that employers social media policies which are so restrictive as to curtail collective action on the part of their employees will run afoul of the NLRA. See Hispanics United of Buffalo, Case No. 03-CA (N.L.R.B. Dec. 14, 2012), available at iii. Contract/Tort Law: A professional football player s Tweets regarding the death of Osama Bin Laden resulted in the termination of his endorsement contract by a clothing company, giving rise to a lawsuit for breach of good faith and fair dealing. See Mendenhall v. Hanesbrands, Inc., 856 F.Supp,2d 717 (M.D.N.C. 2012). iv. Criminal Law: Last week s rape trial in Steubenville, Ohio, captured the country s attention. The prosecution arose in part as a consequence of the posting of photographs and Tweets depicting and discussing the assault as it was happening. v. New definitions of stalking: Use of an interactive computer service to kill, injure, or harass someone, or place them under surveillance, is a violation of the federal internet stalking statute. See 18 U.S.C. 2261A(1)(A). However, the District Court of Maryland ruled that the statute was an unconstitutional restriction of a defendant s First Amendment rights where he used Twitter and a blog to stalk and harass a religious leader in part because the defendant s victim could have simply blocked his Tweets. See United States v. Cassidy, 814 F.Supp.2d 574 (D. Md. 2011). vi. Property rights in virtual property: There have even been lawsuits over the alleged loss of property rights that occurred when the terms of service changed in an online virtual game world called Second Life. See, e.g., Evans v. Linden Research, Inc., No. C , 2012 WL (N.D.Cal. Nov. 20, 2012). vii. Service of process: - 4 -

5 1. Just two weeks ago, in Federal Trade Commission v. PCCare247, Inc., No , 2013 WL (S.D.N.Y. March 7, 2013), a judge in the Southern District of New York permitted service of legal documents upon defendants in India via Facebook. The defendants will also be served via , but the court noted that they actually operated the Facebook accounts at issue, and that service via Facebook was not barred by the Hague Convention. 2. Similarly, in 2009, a court in the United Kingdom permitted service of an injunction via Twitter, where the party to be enjoined was a Twitter user who had been impersonating the plaintiff. Jeremy Kirk, UK High Court Serves Injunction Over Twitter, PCWORLD (Oct. 2, 2009). Link is in your materials. viii. Juror misconduct: 1. A criminal defendant asserted juror misconduct based upon a tweet posted by a friend of the husband of one of the jurors over the difference between assume and presume. United States v. Forde, 407 Fed. Appx. 740, 2011 WL (4 th Cir. Jan. 10, 2011). 2. The federal Judicial Conference has proposed a new model rule expanding a ban on the use of social media to either research or disclose information about a case. The instruction also seeks to have jurors turn in their colleagues who violate the ban. See The Use of Electronic Technology to Conduct Research on or Communicate about a Case, Proposed Model Jury Instructions (June 2012), at e. Social media is becoming central to evidentiary issues. i. There is a significant amount of evidence available on social media sites, and figuring out how to identify, obtain, authenticate, and use such evidence is a critical issue for attorneys. ii. Social media also intersects with concerns over electronic discovery, which is now a critical part of the discovery process under both the federal and state rules. f. Most critically, the American Bar Association s recent amendment to the Model Rules of Professional Conduct suggests that we may have an ethical duty to educate ourselves. i. In August 2012, the ABA s Commission on Ethics 20/20 submitted a Report to the House of Delegates recommending revisions to the ABA Model Rules of Professional Conduct to reflect the growing importance of - 5 -

6 technology to our profession. The most striking, and the starkest, amendment was to Rule 1.1, defining Competence. Rule 1.1 itself was not changed, and still reads: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. ii. However, the Comments to Rule 1.1 were amended so that Comment 6, regarding Maintaining Competence, now reads (new language in bold italics): To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. g. Although the amended ABA Model Rule has not yet been adopted by the North Carolina State Bar, as a practical matter it is critical that we remain abreast of changes in technology so that we can competently represent our clients and compete in the current marketplace. 3. CATEGORIES AND CLASSIFICATION OF SOCIAL MEDIA [10 minutes] a. In 2010, Andreas Kaplan and Michael Haenlein, both Professors of Marketing at ESCP Europe published an article in Business Horizons creating a classification of Social Media. Kaplan and Haenlein identified six categories of Social Media: i. Collaborative Projects. This refers to the joint and simultaneous creation of content by end-users. There are two subcategories of collaborative projects wikis, which are websites that allow users to actual add, remove, or change web-based content, and social bookmarking applications, where users can collect internet links and other categories. The most prominent example of a wiki collaborative project is Wikipedia.com, an online encyclopedia whose content is created by users. Reddit and Pinterest are prime examples of social bookmarking applications. ii. Blogs. Blogs, or weblogs, are essentially personal web pages in which the author can pose a variety of content, ranging from a personal diary or scrapbook to a series of articles on a specific subject area. Usually a blog is managed by a single author or group of authors, but readers may also contribute content by posting comments on particular articles. There are micro-blogs such as Twitter

7 iii. Content Communities. Content communities are places for users to share media content. YouTube, the website where users can upload and share videos, is a very popular example. Other examples include Instagram and Flickr, where users can share photographs, and BookCrossing, where users can share books. iv. Social Networking Sites. Social networking sites are sites where users can create profiles, connect with other users, and share photographs, texts, videos, and other information. The most prominent examples of these are Facebook and LinkedIn. v. Virtual Game Worlds. Virtual game worlds are platforms that allow people to participate in massively multiplayer online role-playing games where they can create personalized avatars and interact with one another through the game. The most popular virtual game world is World of Warcraft, which currently has over ten million subscribers. World of Warcraft has a staggering impact on the real world, if only in terms of the investment of players in the game. A situation arose earlier this year when it came to light that a man in China had hired virtual assassins other World of Warcraft players to kill of his adult son s avatar in the hopes of persuading his son to give up the game and find a job. vi. Virtual Social Worlds. Like virtual game worlds, virtual social worlds allow users to create online avatars and interact with one another in an online virtual setting; however, there are no traditional game play objectives, mechanics, or rules. The most popular virtual social world is Second Life, which currently has more than 33 million residents, of whom fifty to sixty thousand may be online at any given time. In addition to having a number of real-world applications, for example as a virtual classroom or workplace, Second Life includes an economy of virtual dollars which can actually be exchanged for US dollars, so that users can actually earn income and own virtual property. A number of lawsuits have arisen over this virtual ownership. b. Obviously, not all of these categories are useful for us as attorneys. As attorneys, the main categories of interest are blogs, content communities, and social networking sites. In particular, this presentation will focus on four social media platforms: blogs, Facebook, Twitter, and LinkedIn. (Note, though, that the technology is constantly changing, and this list may change accordingly.) i. Blogs: Short for WebLogs, Blogs cover a wide array of social media sites from MicroBlogs such as Twitter to the Multi-Author Blogs used by businesses across the country. Generally, Blogs can be defined as an informational or discussion site published on the web maintained by a single individual or group of users. While most blogs are primarily text, there is an increasing number of blogs featuring videos or pictures as well

8 Free hosting is available from a number of sites, including Blogger, Tumblr, and Wordpress. ii. Facebook: Facebook, which is primarily used as a personal social networking site, registered its 1 Billionth user in That effectively means that 1/7 th of the world s population has an active Facebook account. The Social Networking site allows users to interact with other users, share photos, videos, opinions, and all other manner of digital information. iii. Twitter: Twitter allows users to post messages no longer than 140 characters to a group of followers. It combines the theory behind blogging with the social interaction of Facebook or other social networking sites. Even non-users have the ability to read publicity posted Tweets regardless of their social connection. Registered users have the ability to post messages with varying levels of security, and can also communicate privately with other users via Direct Message. iv. LinkedIn: LinkedIn is a social networking site used primarily for professional networking. Users can post and search for job opportunities, connect with employees in their field, and follow trending topics in their respective industries. 4. SOCIAL MEDIA CAN BE RELEVANT TO OUR LAW PRACTICE IN THREE MAJOR WAYS: [2-3 minutes] a. It can be a tool for how we present ourselves. We can use social media for marketing, client development, and networking. b. It can be a tool for communicating with current clients. c. It can be evidence in our cases. d. It can be a source of information about clients, potential clients, prospective employees, and other lawyers. 5. HOW WE PRESENT TO THE PUBLIC [10-15 minutes] a. Using the tools that are available: Your law firm probably already has a web page. But the four platforms we ve discussed blogs, Facebook, Twitter, and LinkedIn can be powerful tools, in addition to your web page, for you to present yourself and your practice. i. Blogs: 1. Why might you want to blog what are the benefits? - 8 -

9 ii. Facebook: a. You may increase your findability on Google. If you have a blog, potential clients can find it when they search for your name, or when they search for key words in the articles which you have published. This can increase your visibility. b. You can make the public -- including potential clients and colleagues -- aware of your particular skills and knowledge. c. You can publish news about your firm. d. You can reach and educate potential clients. 2. How do you blog? a. Plan what you want your blog to look like. Do you want to focus on just one legal topic, or several? Do you have one writer, or many? What sort of voice to you want your blog to have? Do you want to write long posts, or short ones? How frequently do you plan to post? These are all questions you should answer as you plan out your blog. b. Setting up your blog. There are any number of resources available to you for setting up a blog. You can hire a company that specializes in legal blogs, or you can start a blog on your own through a free service such as Wordpress or Blogger. I d recommend that you research sources on the internet, or pick up a copy of a book such as the ABA s LPM Blogging in One Hour for Lawyers for more guidance. 1. Why might you want to use Facebook what are the advantages? a. Opportunity to connect with friends -- colleagues, other professionals, bar associations, etc. including people with whom you may have lost touch. b. More casual than a blog or the more professional network of LinkedIn. That more friendly, casual feel can have the same effect that playing golf or volunteering in the community does members of the community become clients because they have gotten to know you on a more personal level first

10 c. You can start a Facebook page for your firm, and use it to cross-post updates on your blog, firm news, and other items of interest. d. You can also fan other organizations, including bar associations, as well as corporate clients. iii. Twitter: iv. LinkedIn: 1. Why might you want to use Twitter what are the advantages? a. Twitter allows you to broadcast information to a network in short, 140-character bursts. With those 140 characters, you can provide links to your blog and webpage updates, comment on current events or legal trends, and maintain more constant contact with your followers. b. There are web services which allow you to time your Twitter posts, so that you are posting pre-planned tweets throughout the day. c. You can also follow a multitude of organizations, individuals, and news sources, including bar organizations, major media outlets, and others. 1. Why might you want to use LinkedIn what are the advantages? a. You may already have a profile, but find it useless. A lot of lawyers have a LinkedIn profile, but very few of us actually use it effectively. b. LinkedIn is a way to map and expand your professional network through a series of connections with other professionals. c. LinkedIn is also a way to recommend your fellow professionals, and to receive recommendations by others. d. It is instrumental as a way to find and research candidates in the hiring process. e. You can also set up a company LinkedIn profile for your firm. 2. How should you use LinkedIn?

11 a. Set up your LinkedIn profile 3. Make connections i. The free basic account is sufficient for most lawyers needs; however, there are paid premium options available as well. ii. Fill out your information as completely as possible - - provide details, and create a complete profile. iii. Be sure to link to your blog and your company s website. a. LinkedIn offers the option of uploading your contacts directly from Outlook. You will want to be careful with this -- some contacts may not appreciate a generic mass connection request, and others may not be on LinkedIn at all. b. You can connect with current and former colleagues, fellow alumni, and other individuals you know in the community. Once connected, you may also be able to connect with their connections, expanding your network. 4. Participate a. Updates. LinkedIn allows you to post 140-character updates, which will appear on the home pages and weekly update newsletters of each of your contacts. You can use updates to publicize your blog posts, articles which you have written or in which you are quoted, news about your firm, and so on. Be sure to read your update newsletters and learn what s going on with your connections. b. Groups. Join groups that are of interest to you, and in which you can become an active participant. c. LinkedIn Answers. You can participate in the LinkedIn Questions and Answers, which will increase your visibility. Be sure that you are complying with the ethics rules, particularly regarding creating an attorney-client relationship and providing legal advice. d. Recommendations. You can recommend other LinkedIn users, or request recommendations yourself

12 5. Be sure to manage your privacy settings. You will want to be careful of who can see information on your profile. b. A few more general recommendations: i. You don t have to use ALL the social media options out there. If you want to be able to communicate to a broad network, but you don t have time to write longer articles or posts, then maybe you will want to use Twitter but not a blog. If your contacts will all be professional, then LinkedIn may work better for you than Facebook. Experiment, and assess what works best for you. ii. Whatever social media platform you decide to use and it may not be helpful for you to use all of them be sure that you are posting reliable and interesting information. No one is going to read your blog if the information is useless. iii. Be considerate of your readers and followers don t spam them or bombard them with information. iv. On the other hand, post regularly, and keep track of updates by the users in your networks. Social media is of limited usefulness if you are not an active participant. v. Read EVERY privacy policy of EVERY platform you use, and make sure you keep up with any changes. Understand the account settings necessary to protect yourself and your clients. vi. Maintain a reasonable in-house social media policy. Your automatic instinct might be to simply ban all of your employees from using Facebook, because you might feel it s a waste of time. However, social media is too ubiquitous, and too beneficial, to ignore. 1. Encourage the use of new social media tools in innovative ways. Get your colleagues especially the ones who use social media regularly involved in your marketing plans. 2. Involve members of your firm who have grown up with social media, and who use it regularly. They are a valuable resource. 3. Draft guidelines for each new technology for what lawyers may share online, with an eye toward both ethics and professionalism. 4. Understand that your strategy and your policy will need to change and evolve with time. vii. Avoid violating the ethics rules

13 c. Ethical Pitfalls and how to avoid them i. The old ethics rules still apply. The ABA s Commission on Ethics 20/20 submitted a Report to the House of Delegates in August 2012, for the purpose of suggesting revisions to the ethics rules to address lawyers use of the internet to disseminate information about the law and to attract new clients. Significantly, the Commission determined that it was not necessary to craft new rules to address these issues the old rules, with some tweaking and clarification in the Comments, were found to be sufficient. You should keep in mind that the use of new media does not affect your obligation to practice law ethically. There are, however, a few particular points to remember: 1. Avoid practicing law without a license. Keep in mind that your blog, website, and other internet communications are available to anyone in the world, not just residents of your state. Be sure that your communications clearly state the jurisdiction in which you are licensed to practice law. See North Carolina State Bar, Responding to Inquiries Posted on a Message Board on the Web, 2000 Formal Ethics Opinion 3 (June 21, 2000). Link is in materials. 2. Don t make false statements. Your blog is a communication about your services, and is governed by Rules 7.1 of the Rules of Professional Conduct, and so you need to avoid false or misleading statements. Check the rules governing your practice to determine whether disclaimers are necessary with regard to particular blog posts -- for example, if you post information about past verdicts or completed cases, you must provide context and disclaimers indicating that these past successes are not predictors of future success in any particular case. See North Carolina State Bar, Advertising a Verdict Record, 2000 Formal Ethics Opinion 3 (April 14, 2000). Link is in materials. 3. Avoid creating client relationships. The ABA s Commission on Ethics 20/20 proposed, and the ABA accepted, a revised Comment to Rule 1.18 of the ABA Model Rules of Professional Conduct, which would clarify whether a communication regardless of whether it s on the phone, in person, or electronic could form an attorney-client relationship. While North Carolina has not adopted the revised version of the rule, you should be sure that, when communicating with the public over Facebook, Twitter, or your blog, you don t inadvertently form such a relationship. 4. Do not betray client confidences. The general advice is that, if your client would recognize himself or herself in your post, you shouldn t publish it. HOWEVER, the Virginia Supreme Court

14 issued an opinion last month finding that an attorney who had used his blog to publish publicly-available information about his cases after the cases had concluded did not violate the ethics rules. See Hunter v. Virginia State Bar, No , --- S.E.2d ---, 2013 WL (Feb. 28, 2013). The key factors there, though, were that the cases were no longer pending, and the information was already publicly available. If you do publish information about your cases on your blog, make sure you comply with the governing rules regarding client confidences. 5. Do not solicit. Accidental solicitation over a social media site probably isn t a huge risk for you, but it s something to be aware of nevertheless. Solicitation involves the targeted contact of a person to seek professional employment for pecuniary gain. It is unlikely that general social media posts to the public will be perceived as solicitation, but be wary of more direct contact. The North Carolina State Bar has found that electronic live-support chat options on a website may be permissible where a user could ignore or decline the firm s offer to participate in a live chat session. However, the Bar cautioned that lawyers should beware of representing that the individual from the firm participating in such a chat was an attorney if he or she was not, and of inadvertantly creating attorney-client relationships. North Carolina State Bar, Utilizing Live Chat Support Service on Law Firm Website, 2011 Formal Ethics Opinion 8 (July 15, 2011) (link in materials). 6. Do not violate the rules with recommendations. Rule 7.2(b) of the North Carolina Rules of Professional Conduct prohibits you from giving anything of value to a person for recommending your services. Although the North Carolina Bar has not addressed the question in a Formal Ethics Opinion, it is prudent to interpret this rule to mean that you should not offer to recommend or endorse someone on LinkedIn if they will recommend or endorse you. 7. Beware of specialization claims. While you may communicate that you practice or do not practice in a particular field of law, Rule 7.4 provides that a lawyer may not state or imply that he is certified as a specialist in a field of practice unless her or she has been certified by the North Carolina State Bar, or an organization accredited by the North Carolina State Bar. a. This can be an issue with LinkedIn, which has a profile category called Specialities. Similarly, LinkedIn s Answers feature may designate you as an expert if you participate in it

15 6. HOW WE COMMUNICATE WITH CLIENTS b. The Bar has not issued a formal ethics opinion on whether attorneys violate Rule 7.4 by specifying such specialties, or by being designated as an expert for purposes of the Answers feature. If you do use these features in LinkedIn, it would be prudent to include a clear disclaimer that you have not been certified as a specialist. a. Social Media is another way to connect with your clients. i. Remember that these are still client communications -- again, the same rules apply. ii. Understand the privacy settings of the social media platforms you are using, and make sure that your clients understand them as well. iii. As a general rule, you should be aware that communication with your clients over social media will be subject to the privacy policies of the particular platform. If you have any doubt whatsoever about the security of the communication, conduct your communication in a more secure medium. b. Caution your clients about their use of the internet, , and social media. i. Protect your privileged communications. Courts have held that an individual who uses his employer s to communicate may not have a reasonable expectation of privacy, depending on the employer s policies. 1. In United States v. Hamilton, 704 F.3d 404 (4th Cir. 2012), the Fourth Circuit upheld a bribery conviction which relied heavily on s which the Defendant sent to his wife from his work computer. Although the employer did not have a computer usage policy when the Defendant sent the s, it later adopted a policy stating that users have no expectation of privacy. Because the Defendant took no steps to try to protect the s after the policy was adopted, the Court found that he had waived the privilege. 2. In October 2012, the North Carolina State Bar issued a Formal Ethics Opinion advising lawyers to avoid communications with a client over an employer s system if there is a risk that the employer will find and read the s. Significantly, the Bar cautioned that a lawyer should seek to avoid the use of the employer s system regardless of whether the legal matter is unrelated to the client s employment and regardless of whther there is a legal argument that the use of the system does not waive attorney-client privilege. See 2012 Formal Ethics Opinion 5 (Oct. 26, 2012), at

16 ii. Also be sure that your clients are not waiving the attorney-client privilege by disclosing your advice over their social media. 7. SOCIAL MEDIA AS EVIDENCE a. Steubenville rape case -- introduction. The basic facts are that two high school football players were accused of drugging and raping a teenage girl. The girl actually had no recollection of what happened -- she learned about it the next day because during the assault onlookers posted tweets and photographs on various social media platforms. Text messages and social media comprised key evidence in the case. b. People share an astonishing amount of personal information on social media platforms. i. Communications with friends ii. Photographs iii. Statements about what they ve been doing iv. Statements about their mental states v. Communications to other parties or witnesses in a case vi. Videos c. Additionally, social media evidence can be used for other purposes. i. In a patent infringement case, the Eastern District of Virginia found that a plaintiff had demonstrated irreparable harm in support of a preliminary injunction motion, in part by presenting copies of internet blogs/social media sites expressing customer dissatisfaction with its product. Fred Hutchinson Cancer Research Ctr. v. BioPet Vet Lab, Inc., 768 F.Supp.2d 872, (E.D.Va. 2011). ii. Employers can use social media evidence to question the actions of employees, including the legitimacy of their absences from work. d. What s more, every post contains a time and date stamp, providing a timeline of when particular statements were made, when pictures or videos were posted, when communications took place. And some sites also record where the user was when information was posted particularly if the user posted using a mobile device such as an iphone. e. Courts have held that, as a matter of competence, lawyers should be investigating social media and online resources in their cases

17 i. Given the increasing use of social media as potential evidence, courts have noted that It should now be a matter of professional competence for attorneys to take the time to investigate social networking sites. Griffin v. Maryland, 192 Md. App. 518, 535, 995 A.2d 791 (Md. App. 2010), overruled on other grounds, 419 Md. 343 (Md. 2011) (citation omitted). ii. Johnson v. McCullough, 306 S.W.3d 551, (Mo. 2010) Missouri Supreme Court imposed upon attorneys an affirmative duty to conduct online investigation as part of their jury selection process. f. Information which your client, an opposing party, or a witness has posted on a social media site may be critical to proving or defending your case. Based upon these holdings, it appears increasingly likely that courts will impose upon you the duty to go and find it. g. Ethical Pitfall: Do not attempt to friend a witness, or a represented party, using any false pretenses. Facebook is obviously a trove of information, which can all become highly useful evidence in a case. You might be tempted to send a witness a friend request in order to view their page. However, state bars have found that a friend request sent under false pretenses is likely to be a violation of an attorney s duty of candor. Similarly, a friend request to a represented party is considered an improper ex parte communication. h. How do you get the evidence? i. Knowing what evidence to gather. 1. Find out during the initial consultation what social media your client uses, and what the other parties and witnesses may use. 2. Download your client s Facebook profile, and search to find out what information other parties and witnesses have posted which is publicly accessible. 3. Note: if you look up someone s LinkedIn profile while you are logged in, they may be able to see that you viewed their profile. You should check your privacy controls to protect your investigation. ii. Collecting the information from your client in a legally defensible way. This is outside the scope of this presentation, but you should coordinate with your litigation support specialist or, if necessary, a computer forensics expert, to ensure that electronic material is properly gathered. 1. A new niche:

18 a. There are many vendors that cater specifically to Social Media discovery, offering collection, preservation, and archiving services 2. Self Collection: a. Facebook has recently updated their own integrated archival tool, giving users the ability to create an archive of their entire profile. Furthermore there are numerous web capture tools that can be used to download social content, from video files on YouTube, to entire twitter pages. As with all discovery, it is important to consult an expert in the field to avoid spoliation of data and maintain a chain of custody. 3. Public Disclosure and Discoverability Conflicting results. iii. Getting information a. Information posted PUBLICLY on Facebook was significantly conflicting with the plaintiff s claims of personal injury, prompting the court to rule that Facebook posts were discoverable. McMillen v. Hummingbird Speedway, Inc., 2012 WL (Pa. Com. Pl. 2010) b. The Eastern District of Michigan recently ruled that, although a private Facebook page is neither protected by privacy laws nor considered privileged information, the relevance of information on the public profile did not warrant making Facebook discoverable. Stating that the request was overbroad and was not reasonably calculated to lead to the discovery of admissible evidence. See Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012) 1. Note that, pursuant to the Stored Communications Act, 18 U.S.C et seq., it may not be possible to subpoena information directly from a provider, such as Facebook or Twitter, in a civil matter. However, this option may still be available in criminal cases. 2. Material on a social media profile is discoverable directly from the user, however. The standard discovery rules still apply your requests should be reasonably tailored, and should seek information that is discoverable in the case. See Anthony v. Atlantic Group, Inc., No. 8:09-cv-2383, 8:09-cv-02942, 2012 WL (D.S.C. Sept. 12, 2012); Equal Employment Opportunity

19 8. QUESTIONS? Comm n v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D.Ind. 2010). iv. Understand the governing rules for authentication of the information those rules still apply. See Griffin v. Maryland, 419 Md. 343, (Md. 2011) (finding that the trial court erred in admitting an excerpt of a witness s MySpace page without properly authenticating the document). 1. The Griffin court suggested that the prosecution could have authenticated the page in at least three ways (1) by asking the purported creator whether she had created the profile and written the pose in question; (2) by searching the alleged creator s computer; or (3) by obtaining information directly from the social networking site. v. Same evidentiary rules will still apply -- hearsay, etc. 1. As pointed out by one court, the very nature of social networking sites makes them particularly fertile grounds for statements involving events surrounding the user, or the user s feelings, plans, or emotions. Griffin v. Maryland, 192 Md. App. 518, 995 A.2d 791 (Md. App. 2010), overruled on other grounds, 419 Md. 343 (Md. 2011). In other words, hearsay exceptions may apply to a witness s social media postings

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