E-Discovery Implications of Social Networking Sites

Transcription

1 WELCOME TO OUR WEBINAR E-Discovery Implications of Social Networking Sites June 8, :00 am PST 11:00 am MST 12:00 pm CST 1:00 pm EST The audio portion is available via conference call. It is not broadcast through your computer. If you do not hear the hold music (prior to 10 am PST) or the presenters (after 10 am PST), please re-dial the applicable conference number below. US participants: Outside the US: *This webinar is offered for informational purposes only, and the content should not be construed as legal advice on any matter.

2 Today s Presenter CURRENTLY SPEAKING Kathy Owen Partner Litigation Dallas Special Thanks to So-Eun Lee and Andy Zollinger in DLA Piper s Dallas office for their assistance in researching and preparing this presentation. (c) 2010 DLA Piper LLP (US) 2

3 Introduction Facebook: over 400 million active users as of May 2010 MySpace: over 260 million active users as of June, 2009 Twitter: over 105 million registered users as of April 2010 (c) 2010 DLA Piper LLP (US) 3

4 Introduction Each site facilitates communication and conveys autobiographical information Users get a free space or profile to which they may upload photographs, personal information, and almost anything else they desire Private and public messages to other users Chat capabilities (c) 2010 DLA Piper LLP (US) 4

5 What we re going to do: 1. Quickly discuss jurisprudence regarding social networking sites as evidence. (c) 2010 DLA Piper LLP (US) 5

6 What we re going to do: 2. Briefly explain how the rules address social networking sites and how courts have applied the Rules. (c) 2010 DLA Piper LLP (US) 6

7 What we re going to do: 3. Discuss discovery of evidence gathered from social networking sites. (c) 2010 DLA Piper LLP (US) 7

8 What we re going to do: 4. Discuss other uses of social networking sites in litigation. (c) 2010 DLA Piper LLP (US) 8

9 Let s get started (c) 2010 DLA Piper LLP (US) 9

10 1. Social Networking Sites as Evidence Weber v. Dyck (2007 CarswellOnt 3851): A famous 2007 Ontario case where a young woman claiming serious injuries after a car accident was confronted by her MySpace photos of skiing in the Swiss Alps. People v. Binkerd (trial court order not available): A 2007 California case where a young driver killed her passenger in a drunk driving accident. Her attorney advised her to take down her MySpace page during their first meeting, but she did not follow that advice. (c) 2010 DLA Piper LLP (US) 10

11 1. Social Networking Sites as Evidence Matthew Cordova (citation/opinion not available): A 2007 Arizona case where defendant pled guilty to aggravated assault with a gun. At the sentencing hearing, his attorney tried to portray him as a peaceful man who had found religion, yet the prosecution had a MySpace picture of defendant holding a gun which he posted comments about. Ernest Ray (plaintiff in MDL proceeding In re: Welding Fume Products Liability Litigation case Number 03-cv- 1700): January 14, 2010 the judge granted plaintiff Ernest Ray s voluntary motion to dismiss his case with prejudice. Plaintiff had been claiming total disability from exposure to welding fumes. The motion to dismiss was filed after defense lawyer s located photos of plaintiffs racing motor boats on Facebook. (c) 2010 DLA Piper LLP (US) 11

12 1. Social Networking Sites as Evidence So how are lawyers using social networking web sites as evidence? To investigate lay and expert witnesses To prepare for depositions To vet prospective jurors To investigate opposing counsel and judges To tailor closing arguments and trial strategy (c) 2010 DLA Piper LLP (US) 12

13 2. How the Rules and Case Law Address Social Networking Sites The Federal Rules of Evidence, the Federal Rules of Civil Procedure, and the applicable state rules do not specifically address social networking web sites as a unique form of evidence. Among a handful of recent cases that have addressed social networking web sites, there is no consensus as to the admissibility or discoverability of such web sites. (c) 2010 DLA Piper LLP (US) 13

14 2. How the Rules and Case Law Address Social Networking Sites Recent cases: State v. Carroll, No. 07CA14, 2007 WL (Ohio Ct. App. Sept. 11, 2007) Court admitted information from and testimony about a MySpace page, where the victim told the defendant, and also posted, her age. In re T.T., 228 S.W.3d 312 (Tex. App. Houston [14th Dist.] 2007) In terminating the defendant s parental rights, the court allowed the introduction of content from the defendant s MySpace page, which stated that he was single and did not want children. (c) 2010 DLA Piper LLP (US) 14

15 2. How the Rules and Case Law Address Social Networking Sites But Crispin v. Audigier, No. 2:09-cv (C.D. Cal. May 26, 2010) A district judge reversed a magistrate judge s ruling that the fashion house Christian Audigier Inc. can subpoena Facebook and MySpace communications of an artist who sued the designer for copyright infringement on grounds that messages on the social networking sites are protected information under the Stored Communications Act. (c) 2010 DLA Piper LLP (US) 15

16 2. How the Rules and Case Law Address Social Networking Sites Federal Rules of Civil Procedure (amended 2006) Rule 34 of the Federal Rules of Civil Procedure addresses electronically stored information (ESI): Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes: Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained translated, if necessary, by the respondent into reasonably usable form.... (c) 2010 DLA Piper LLP (US) 16

17 2. How the Rules and Case Law Address Social Networking Sites Reasons social networking sites will likely be treated just like other types of ESI under Rule 34: The Advisory Committee intended the rule on ESI to be a fluid concept. Social networking web site components are similar in structure and function to traditional forms of ESI. Case law on traditional forms of evidence provides guidance for any differences between social networking web sites and other forms of ESI. (c) 2010 DLA Piper LLP (US) 17

18 2. How the Rules and Case Law Address Social Networking Sites Federal Rules of Evidence Federal Rules of Evidence do not address electronic data as a distinct category of evidence. Federal case law regarding social networking web sites is limited, but federal courts have found that the Federal Rules of Evidence apply to computerized data as they do to other types of evidence. (c) 2010 DLA Piper LLP (US) 18

19 2. How the Rules and Case Law Address Social Networking Sites Federal Rules of Evidence Authentication Issues: Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007) United States v. Tank, 200 F.3d 627 (9th Cir. 2000) (c) 2010 DLA Piper LLP (US) 19

20 2. How the Rules and Case Law Address Social Networking Sites State Rules of Civil Procedure Currently, 33 states have enacted amendments addressing ESI: AL, AZ, AK, CA, CT, FL, ID, IL, IN, IA, KS, LA, ME, MD, MI, MN, MS, MO, MT, NE, NH, NJ, NM, NY, NC, ND, OH, TX, TN, UT, VT, VA, WY. (c) 2010 DLA Piper LLP (US) 20

21 2. How the Rules and Case Law Address Social Networking Sites There is limited state case law regarding discoverability of information found on individual users pages. A few cases addressed the discoverability of social networking web sites in relation to an individual s right to privacy. Dexter v. Dexter, No P-0051, 2007 WL (Ohio Ct. App. May 25, 2007) Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125 (Cal. Ct. App. 2009) A.B. v. State, 885 N.E.2d 1223 (Ind. 2008) (c) 2010 DLA Piper LLP (US) 21

22 2. How the Rules and Case Law Address Social Networking Sites State Rules of Evidence Just as the Federal Rules of Evidence adequately govern ESI without specifically mentioning it, the standard state rules also govern social networking sites. State v. Bell, 882 N.E.2d 502 (Ohio Ct. Com. Pl. 2008) In re K.W., 666 S.E.2d 490 (N.C. App. 2008) (c) 2010 DLA Piper LLP (US) 22

23 3. Discovery of Evidence Gathered From Social Networking Sites How to request, collect, produce, and preserve information gathered from social networking web sites? (c) 2010 DLA Piper LLP (US) 23

24 3. Discovery of Evidence Gathered From Social Networking Sites Various Social Networking Sites Privacy Policy Facebook: We may disclose information pursuant to subpoenas, court orders, or other requests if we have a good faith belief that the response is required by law MySpace: There may be instances when MySpace may access or disclose PII (personally identifiable information), Profile Information or non-pii without providing you a choice in order to: (iv) comply with the law or legal process Twitter: We may disclose your information if we believe that it is reasonably necessary to comply with a law, regulation or legal request (c) 2010 DLA Piper LLP (US) 24

25 3. Discovery of Evidence Gathered From Social Networking Sites How to obtain and/or produce the information? Obtain user id/password Screen shots Subpoena Camstudio.org (c) 2010 DLA Piper LLP (US) 25

26 3. Discovery of Evidence Gathered From Social Networking Sites Case law Mackelprang v. Fidelity Nat l Title Agency of Nev., Inc., No , 2007 WL (D. Nev. Jan. 9, 2007) Ledbetter v. Wal-Mart Stores, Inc., No , 2009 WL (D. Colo. Apr. 21, 2009) Horizon Blue Cross Blue Shield cases (D.N.J. 2008) (c) 2010 DLA Piper LLP (US) 26

27 3. Discovery of Evidence Gathered From Social Networking Sites Generally speaking, courts are reluctant to compel service providers to provide broad, unrestricted access to social networking user information. Courts are willing to require users to produce social networking information in response to narrowly tailored discovery requests. Courts are not receptive to user privacy or privilege arguments when information has been shared on social networking sites, even if the intended audience was limited. (c) 2010 DLA Piper LLP (US) 27

28 3. Discovery of Evidence Gathered From Social Networking Sites Preservation Document Hold Language Data from social networking sites (e.g., Facebook, Twitter, LinkedIn, etc.) are not maintained on company servers. As a result, in order to comply with the requirements of this document hold memo, do not use social networking sites to communicate information in any way relating to [issue subject to hold] until further notice. If you find someone has communicated with you via text messaging or social networking sites regarding [issue subject to hold] please contact [Legal Contact]. (c) 2010 DLA Piper LLP (US) 28

29 4. Other Uses of Social Networking Sites in Litigation Attorneys on social networking sites In Texas, a lawyer requested a continuance due to the death of her father, but the lawyer s recent Facebook statuses told a different story of a week filled with drinking and partying. Also in Texas, a lawyer complained about a judge s handling of a motion on her Facebook page. The judge playfully zinged her, too on Facebook, of course. In Minnesota, a Somali man convicted of murder recently filed a motion for a new trial based on the prosecutor s anti-somali Facebook postings allegedly made during his murder trial. The postings also allegedly contained statements regarding the prosecutor s impressions of one of the jurors in the case. The motion was ultimately denied. (c) 2010 DLA Piper LLP (US) 29

30 4. Other Uses of Social Networking Sites in Litigation Judges on social networking web sites Can you be Facebook friends with a judge? Florida Judicial Ethics Advisory Committee: A judge may NOT add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend." South Carolina Advisory Committee on Standards of Judicial Conduct: A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge s position as magistrate. (c) 2010 DLA Piper LLP (US) 30

31 4. Other Uses of Social Networking Sites in Litigation Jurors on Social Networking Web Sites United States v. Fumo, No , slip op. 115 (E.D. Pa. Jan. 17, 2009): A juror used Twitter, Facebook, and blogs to post information about the trial during deliberations, prompting the defendant to complain in his post-verdict appeal of conviction. The court found that the juror violated the court s admonition against discussing the details of the trial but that there was no evidence showing that his extra-jury misconduct had a prejudicial impact on the verdict. (c) 2010 DLA Piper LLP (US) 31

32 4. Other Uses of Social Networking Sites in Litigation Jurors on Social Networking Web Sites Trial consultants regularly use internet research as a means of vetting prospective jurors and learning information jurors may not reveal on jury questionnaires or during voir dire, including how they vote, how they spend money, and whether they've spoken out on controversial issues. In a multimillion-dollar civil action in Ohio, plaintiffs counsel discovered that a member of the jury pool listed his status update on Facebook as sitting in hell aka jury duty[.] The judge removed the juror from the jury pool. (c) 2010 DLA Piper LLP (US) 32

33 Conclusion (This presentation used the following articles as resources: Kathrine Minotti, The Advent of Digital Diaries: Implications of Social Networking Web Sites for the Legal Profession, 60 S.C. L. Rev (2009); Sharon Nelson, et al., The Legal Implications of Social Networking, 22 Regent U. L. Rev. 1 ( ); Minnesota State Bar Association, Shannon Awsumb, Social Networking Sites: The Next E-Discovery Frontier, 66-Nov Bench & B. Minn. 22 (2009).) (c) 2010 DLA Piper LLP (US) 33

34 Next Social Media Webinar Social Media & Online Fraud: How you can protect yourself and your organization Gina Durham Partner Trademark, Copyright and Media September 22, :00 pm ET (c) 2010 DLA Piper LLP (US) 34

35 Questions? Questions can be submitted via chat. If they are not answered today, we will try and follow-up or you can me. Kathy Owen DLA Piper LLP (US) 1717 Main Street, Ste 4600 Dallas, TX (c) 2010 DLA Piper LLP (US) 35