Social Media in Tribunal Proceedings

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1 Social Media in Tribunal Proceedings Case Management Challenges Associate Professor Michael Legg

2 Overview Social Media Definition Electronically Stored Information Cloud Computing Use of Social Media Obtaining Access to Social Media Document Destruction

3 Social Media

4 @LitigatorLegg

5 Electronically Stored Information (ESI) Electronically Stored Information (ESI) is data that is stored on an electronic medium, usually a computer or server, and which is accessed through some form of computer program. For example it includes an , database, Word document, PowerPoint presentation or spreadsheet. Social media is a form of ESI challenges of ESI and approaches to overcome them relevant to social media eg discovery of

6 ESI Characteristics voluminous. ubiquitous - it has replaced the telephone, postal service, face-to-face meetings and conversations. difficult (although not impossible) to delete. gives rise to metadata or data about data. dynamic it can change with time or through the routine operations of the information technology environment. frequently incomprehensible when separated from the system that created it.

7 Cloud Computing Data is no longer stored on an entity s computer or server, instead high-speed internet access is used to outsource storage to third-party providers. For many entities they are no longer the custodians of the records they produce or receive eg users of social media Entity s ability to access data may depend on contract with the third-party cloud computing provider.

8 Use of Social Media in Disputes Wide range of examples: Medical negligence or personal injury Family law Employment law - threats against other employees, harrasment, discrimination Misleading or deceptive conduct Defamation Disclosure of confidential information Alibi in criminal proceedings Contempt evidence of non compliance with tribunal/court order

9 Use of Social Media in Disputes personal injury case damages injury is not as bad as claimed - photos of plaintiff skiing, mountain climbing, partying Romano v Steelcase Inc 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010) claim of permanent injuries that kept plaintiff bedridden but Facebook and MySpace accounts showed plaintiff standing and smiling outside home Terry v. Mullowney [2009] N.J. No. 86 Canadian personal injury case where the judge commented Without this [Facebook] evidence, I would have been left with a very different impression of Mr. Terry s social life.

10 Use of Social Media in Disputes In UK and US increase in the use of evidence from social networking websites in divorce proceedings Evidence of infidelity, financial position, proof of bad parenting Example: Condon Nixon v Rivers [2012] FAMCA 7 where derogatory Facebook posts about the mother were relied on by the mother to support a sole parenting order. Judge raised concerns that steps had not been taken to ascertain/verify who made the posts or when the Facebook page was created (at [139]).

11 Use of Social Media in Disputes Social media used to harass or discriminate. Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444 (on appeal) where the applicant was dismissed with notice for posting derogatory and harassing comments about managers on Facebook. In Nguyen v Starbucks Coffee Corp 2009 WL (N.D. Cal. 2009) the plaintiff sued her former employer for harassment and discrimination after having been fired for threatening violence toward co-workers. The defendant obtained summary judgment with the help of the plaintiffs MySpace page, which stated: Starbucks is in deep shit with GOD!!!... I thank GOD 4 pot 2 calm down my frustrations and worries or else I will go beserk and shoot everyone.

12 Access to Social Media Lawyer/party accesses without tribunal involvement (informal): Publicly available eg Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444 where Facebook page had no security settings Available to friends or followers only - limited access. Ethical issues see 43 Arizona State Law Journal 1021.

13 Access to Social Media Tribunal processes (formal): Party or social media provider? discovery or subpoena? Party may have "possession, custody or power" Facebook Data Use Policy: We may share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so Twitter TOS: We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request

14 Access to Social Media Tribunal processes (formal): Novel approaches judge friends parties on Facebook eg Barnes v CUS Nashville LLC, 2010 WL (M.D. Tenn. 2010) Parties required to provide passwords for Facebook and dating sites to opponent s lawyer eg Stephen Gallion v Courtney Gallion (S Ct Connecticut, 30 Sept 2011) Problematic?

15 Access to Social Media Use of formal processes requires considerations of relevance and proportionality. Unable to engage in fishing expedition - need to request specific information relevant to claims Proportionality requires consideration of what is at stake and what it will cost to obtain the information stored on social media. Use "meet and confer" (as required for ESI) to determine scope of access, method of search and avoid protracted exchanges in correspondence Consider use of independent third party to examine social media sites

16 Document Destruction Litigants may wrongly believe that their social media is private and therefore not accessible in litigation Litigants may respond to requests for social media by deleting the material Example Palavi v Radio 2UE [2011] NSWCA 264 defamation case where defendant sought mobile phones/ iphones to access texts and pictures. Facebook entry 'how do I get pics off my iphone Social media provider may destroy documents

17 Document Destruction Pre-emptive steps what steps have been taken by lawyers/parties to impose "litigation hold, including understanding that social media is potentially discoverable Same sanctions as exist for hardcopy document destruction apply to social media Is it really destroyed? Deleted material can be recovered from social media provider (the cloud), perhaps using computer forensics. At what cost?

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