FLORIDA FAMILY LAW: SOCIAL MEDIA & E-DISCOVERY. Christopher.Hopkins@Akerman.com
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1 FLORIDA FAMILY LAW: SOCIAL MEDIA & E-DISCOVERY
2 Christopher B. Hopkins Lawyer, Mediator, Arbitrator & iphone App Developer
3
4 Handouts 1. Defendants Want Social Media, Plaintiffs Want E-Discovery (Palm Beach Bar, April 2013) 2. What the Patreaus Scandal Tells Us About Privacy (Palm Beach Bar, January 2013) 3. Discovery of Facebook Content in Florida Cases (FDLA Spring 2012) Download all handouts here
5 Be Careful
6 Sanctions
7 Cross the Line or Didn t Produce
8 Even CIA Makes Mistakes let you know that the CIA recently located 7 additional images of OBL s body Had they been located previously, these records would have been responsive to your FOIA request we do not believe the discovery of these additional images is relevant to the appeal pending currently before the D.C. Circuit.
9 Who Has Viewed Your Profile on LinkedIn?
10 Search LinkedIn Anonymously Click here, select Privacy & Settings Select What Others See When You ve Viewed Their Profile
11 Search LinkedIn Anonymously This window will appear
12 Tell Your Clients to Be Careful (in writing)
13
14 There is no DELETE
15 Florida Computer Crimes Act
16 Hacking Spouse s Account = Domestic Violence in Florida? Cheryl Young v. Michael Young (Fla. 1st DCA 9/11/12).
17 Where to Look
18 Where to Look?
19 Where to Look?
20 Looking for LinkedIn: Alimony & Child Support Extreme Ideology Criminal / Illicit Behavior Predicate for Full Social Media Access
21 Social Media Discovery
22 As it pertains to matrimonial matters, electronic discovery may be crucial [in the proper cases] to determine and confirm the existence of vital information. In others, it may be a weapon of abuse which will further clog a system that is already in need of relief. Schreiber v Schreiber, 904 N.Y.S.2d 886, 890 (N.Y. App. 2010).
23 I just might be in a particular mood you re quite familiar with
24 Schools & Jobs Social Media Is Generally Discoverable Davenport v. State Farm, 2012 wl (M.D. Fla. 2012) Beswick v. Northwest Medical Center, 2011 WL (Broward 2011) Order on Defendants Motion to Compel: Answers to Social Media Interrogatories & Release of Records from Facebook
25 Often Need a Predicate to Get Account Access Levine v. Culligan of Florida, 2013 WL (Judge Sasser ) Salvato v. Miley, 2012 WL (M.D. Fla. June 11, 2013) German v. Micro, 2013 WL (S.D. Ohio 2013) Zimmerman v. Weis Markets, Inc. (PA. Ct. 2011)
26 Subpoenas to Facebook Don t Work, But... Get consent from user via a court order compelling person to produce content Juror Number One v. Superior Court of Sacramento (CA. App. 2012)
27 No Excuses for Not Producing In Re White Tail, 2012 WL (E.D. La. Oct. 11, 2012)
28 Special Master or Neutral Examiner To Review EEOC v. Original Honeybaked Ham, 2012 WL (D. Colo. Nov. 7, 2012) Perrone v. Lancaster Regional Medical Cntr. (Pa. Cmm. Pleas, May 3, 2013)
29 Davenport v. State Farm -- Requests 1. All photographs posted, uploaded, or otherwise added to any social networking sites or blogs, including but not limited to Facebook.com, Myspace.com, Twitter.com, or any similar websites posted since the date of the accident alleged in the Complaint. This includes photographs posted by others in which Chelsea Davenport has been tagged or otherwise identified therein. 2. All computers, cell phones, laptops, smart phones, or any similar electronic devices used by, owned by, or in any way accessible by Chelsea Davenport to gain access or post any material on any social networking sites or blogs, including but not limited to Facebook.com, Myspace.com, Twitter.com, or any similar websites.
30 Sample Social Media Discovery Requests
31 Sample Social Media Interrogatories: Basic Account Info 1. Please provide any address(es) used or maintained by Plaintiff from [date] to the present. 2. Please identify (a) any social media site(s) which you have used from [date] to the present and (b) your user name or profile name for each social media site listed. "Social media sites" refer to Internetbased social media websites and/or services including but not limited to Facebook, Twitter, Linked In, Instagram, Pinterest, Google Plus, Xbox Live, and Foursquare. You are not being asked to produce content or a password this Interrogatory simply asks you to identify internet-based services which you have used or continue to use and your user (or profile) name.
32 Sample Social Media Interrogatories: Image Sharing Sites 1. Please identify (a) any image sharing site(s) which you have used from [date] to the present and (b) your user name or profile name for each social media site listed. "Image sharing sites" refer to Internet-based image sharing websites and services including but not limited to Shutterfly, Flickr, Tumblr, Photobucket, SnapChat, Imgur, Snapfish, and Photo.net. You are not being asked to produce content or a password this Interrogatory simply asks you to identify internet-based services which you have used or continue to use and your user (or profile) name.
33 Sample Social Media Interrogatories: Video Sharing Sites 1. Please identify (a) any video sharing site(s) which you have used from [date] to the present and (b) your user name or profile name for each social media site listed. "Video sharing sites" refer to Internet-based video sharing websites and services including but not limited to YouTube, Vine, SnapChat, Vimeo, Vevo, and UStream. You are not being asked to produce content or a password this Interrogatory simply asks you to identify internetbased services which you have used or continue to use and your user (or profile) name.
34 E-Discovery
35 Litigation Hold Letter Letter sent requesting opposing party preserve ESI (often pre-suit) Counsel Needs to Ask Client If you receive a litigation hold letter: Machines with data, including cell and tablets Accounts, hard drives, thumb drives, sticks/cards w data (over-ride any auto-delete programs now!) Kids might know? Counsel Needs to Act, Part I Send litigation hold letter to your client, tell him/her to not delete Document your efforts to obtain machines, drives, sticks/cards, and accounts ALWAYS RESPOND. Lit hold letters are usually overbroad; a responsive letter and meetand-confer is a good solution.
36 Litigation Hold Letter Counsel Needs to Act, Part II -- THIS IS FROM COMMERCIAL / FEDERAL CASES Meet & Confer Propose reasonable limits Propose phased discovery Propose search methods Cost shifting Consider an early Motion for Protective Order File a Motion for Protective Order to Pre-Emptively Handle Inadvertent Disclosure (Fed. Rule 502) Consider Proposed Joint Omnibus E-discovery Order See Effective Use of Rule 502(d) in E-Discovery Cases,
37 In Re: Amendments to Florida Rules of Civil Procedure Electronic Discovery SC July 5, 2012
38 Florida E-Discovery Rules Rule 1.200: Case Management advanced ruling on admissibility; agree on scope, form, limits Rule 1.280: Scope and Limits If it is not reasonably accessible, then it is not discoverable absent good cause (proportionality and reasonableness) Rule 1.380: Sanctions no sanctions for failing to produce as a result of routine operation of your information system (absent exceptional circumstances). TIPS: Move for protective order Use support affidavits See Effective Use of Rule 502(d) in E-Discovery Cases,
39 Discovery Apps
40 AVG PrivacyFix
41 Number Guru
42 IMB Reader
43 Booking Blotter
44 Lawyer InternetLawCommentary.com Arbitrator Linked In iphone Developer Google +
Florida E-Discovery 2013
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