UPCOMING IADC MEETINGS

Transcription

1 UPCOMING IADC MEETINGS Visit for more information July 10-15, 2010 Annual Meeting Hotel Arts Barcelona, Spain October 7 8, 2010 International Corporate Counsel College InterContinental Paris-Le Grand Paris, France July 31 August 6, th Annual Trial Academy Stanford Law School Palo Alto, California USA February 19 24, 2011 Midyear Meeting Inn at Spanish Bay Pebble Beach, California USA

2 Social Media Webinar Series: Part 4 Uses of Social Media in Discovery and Trial Thursday, June 24, 2010 Presented By the IADC Social Media Task Force and Drug, Device and Biotechnology Committee Welcome! The Webinar will begin promptly at 12 pm CDT. Please read and follow the below instructions: 1. If you have not already done so, please join the conference call. 2. Mute your phone line. If you do not have a mute button or are on a cell phone, press *1 to mute your phone. 3. If you are on a conference phone, please move all cellular or wireless devices away from the conference phone to avoid audio interference. 4. If you have questions during the presentation, you may utilize the Q&A function at the top of your screen. You may type questions here and it will be sent to the presenters for response. If your question is not answered during the presentation, our presenters will answer questions at the end of the webinar, or via following the webinar. 5. Visit the Handouts section in the upper-right-hand corner of the screen if you would like to download a copy of this PowerPoint presentation. You can also find these materials on our website at

3 Click on the Q&A tab on your screen to type a question for the presenters. Click the Handouts tab on your screen to download this PowerPoint

4 Moderator Christopher S. Berdy Christian & Small, LLP Birmingham, Alabama

5 Presenters Gray T. Culbreath Collins & Lacy, P.C. Columbia, South Carolina Stephen F. McKinney Haynsworth, Sinkler & Boyd, P.A. Columbia, South Carolina

6 The Road Less Traveled: Social Media in Discovery and Trial

7 Youthful Novelty to New Reality: The Numbers Don t Lie Radio: 38 years to reach 50 million listeners. T.V.: 15 years to reach 50 million viewers. Internet: 4 years to reach 50 million users. Facebook: 12/04 (1 million users) 2/10 (400 million users) : 3 billion photos shared per month. : 50% of active Facebook users logon every day. Other Social Media Sites: 75% of Americans involved.

8 Case Study Number One: Social Media as an Impeachment Tool

9 Impeachment Tools Candid and often vivid images and perspectives on Plaintiff s condition. Access to contradictory statements from Plaintiffs and fact witnesses related both to liability and damages. Insights into bias or other witness credibility issues.

10 Case Study Number Two: Use of Social Media to Develop a Discovery Plan

11 Planning Tools In pre-suit circumstances, use of social media sites can provide information which can focus discovery going forward. Tracking claimants condition and progress. Advance notice of medical providers, treatment and medical procedures. Use of the social media site to develop a discovery plan, including identification of witnesses.

12 Case Study Number Three: Use of Faith-based Social Media for Background Investigation

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14 CaringBridge: My Story

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16 CaringBridge: Welcome

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18 CaringBridge: Journal

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21 Thursday, June 1, :00 PM, CDT Hey everyone this is Dru, I just talked to Troy and here is the latest. She is still in the ICU listed in stable condition. They have checked her eyes and they are now responding to light and dilating. She is breathing on her own and has had the oxygen content reduced to 20%. She is still inti bated and sedated. The doctor said they may reduce the sedation to check on her in a couple of hours. They will do another Cat Scan tomorrow to see if things are getting worse or better. There is not any reason at this point to relieve any pressure to the brain, although there is a significant skull fracture along with the bruising/bleeding. The swelling has held without increasing or reducing. These are all good signs, but the doctor is saying that they really won't know the extent of the brain damage for still hours. She has two places in her back that are broken, there is a possible hip, shoulder, and clavicle fracture. At this point they have her immobilized and will start assessing additional broken bones, etc. once they have a better handle on the brain issues. For those that are trying to understand what actually happened, her is the best explanation I can give from Troy. The elevator in the house they were staying at went between all four floors. It was wide and tall enough for an adult and some luggage. It had an interior door much like an old time freight elevator. The metal scissor kind. The exterior door look like a closet door. The exterior door wouldn't open without the elevator being on that floor. So that is how it worked. The kids were instructed to not use the elevator without an adult with them. When Libby went upstairs to get her bathing suit on she and Ashley (the 2yr. old) must have got on the elevator. As it went upstairs somehow the interior door either wasn't closed properly or was opened from the inside. There was enough room between the elevator floor and the wall for a small child to fall through. This is how they think she fell. They heard her scream and Troy ran to the third floor. The elevator opened and there sat Ashley and she said that Libby fell. They couldn't understand where she was until they heard her moaning in the elevator bay. They ran to the basement and had to break open the service door to get to her. Troy new immediately she was really hurt. She wasn't moving very much and was unresponsive to him. The rest we all know. I hope this answers some of your questions. I know Troy and Dorsey will send out an to everyone as soon as they can. They have been overwhelmed with the level of support that has already been poured out on them. They are coveting your prayers right now and ask that where possible anytime we are together we pray for them corporately. Thanks again for being such amazing family and friends. We all stand in the gap together for Libby and her family. Stand strong! Dru

22 CaringBridge: Guestbook

23 Deep Background Tools Fill in factual gaps. Learn more about the Plaintiff and family. Learn more about the Plaintiff s treatment and prognosis. Discover other sites that may include candid information e.g. church and social club websites.

24 Social Media Discovery: Getting It Informal Website Searches: - Search early and print or download information immediately. - Note privacy filters. - Conduct regular follow up searches to note additions, deletions or changes. - Use IT professionals to copy or save screen shots of websites. - Forensic evaluation of social network accounts.

25 Formal Discovery: - Early creation of duty to preserve and update information. - Interrogatories (IP addresses and content). - Requests for production (IP addresses and content). - Requests for admission. - Subpoenas to third party fact witnesses. - Subpoenas to social network sites (IP user logs).

26 Challenges: - Stored Wire & Electronic Communications Privacy Act (18 U.S.C. 2701, et seq.): Subpoenas to social media networks will likely only yield basic subscriber information and user IP logs. Subpoenas to social media networks may trigger preservation obligations to aid in avoiding spoliation. - Scope/Relevance: Keep requests narrowly tailored. Mackelprang v. Fidelity Nat l Title Agency of Nev., Inc., 2009 WL (D. Nev. 2007).

27 Agree to entry of protective orders. Ledbetter v. Wal-Mart Stores, Inc., 2009 WL (D. Colo. 2009).

28 Privacy Users routinely agree to social network privacy policies stating that information may be disclosed to third parties. Users typically deemed to have diminished expectation of privacy with regard to social network accounts. Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4 th 1125 (Ct. App. 2009).

29 Social Media Discovery: Getting it In. The unique authenticity challenge: My space, your space, whose space? Telewizja Polska USA, Inc. v. Echostar Satellite, 2004 U.S. Dist. LEXIS 20845, WL (N. D. Ill. 2004). Fed. R. Evid. 901(a): [E]vidence sufficient to support a finding that the matter in question is what its proponent claims. Party production likely presumed authentic. Perfect 10 v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002).

30 Examination of Foundational Authenticity Requirements: - More strict for electronically stored information than for hard copy. - Proof of authorship: Admission. Stipulation. Testimony of witness who observed entry of posting. Connecting witness to postings directly or indirectly. Testimony of person who obtained a copy of the web page material, stating when and how copy obtained. Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

31 Proceed with caution. True friends? Social Media Discovery: Potential Ethical Pitfalls Philadelphia Bar Association Professional Guidance Committee Opinion (March 2009). New York County Lawyers Association Committee on Professional Ethics, Formal Opinion No. 737, May 23, Oregon Bar Association s Formal Opinion No Invasion of Privacy? Pietrylo v. Hillstone Restaurant Group, , 2008 U.S. Dist. LEXIS (D.N.J. July 25, 2008)

32 RESOURCES Network Interference: A Legal Guide to the Commercial Rights and Rewards of the Social Media Phenomenon. Douglas J. Wood (Reed Smith) /article/network-interference-lega-guide-to-commercial-risksand-rewards-social-media-phenomenon Social Media in Action in Litigation, Evidence & Privilege Legal Bytes website, March 8,

33 A Growing Trend: Social Media as Legal Evidence, West Michigan Business, July 29, business/west-michigan/index.ssf/ 2009/07/a_growing _trend_social_media_a.html Social Media Go to Court, Phillip K. Anthony and Christine Martin, The National Law Journal, Feb. 2, Discovery of Social Networks: Getting it, Getting the Most Out of It, and Getting It into Evidence, Stephen M. Brooks and Matthew E. Brown (Nelson Mullins Riley & Scarborough), DRI, The Voice, June 9, 2010.

34 Computer Counselor: Making Internet Searches Part of Due Diligence, Carole A. Levitt and Mark E. Rosch, 29 Los Angeles Lawyer 46 (2007). The Cybersleuth s Guide to the Internet, 9 th Ed. (2008), Carole A. Levitt and Mark E. Rosch.

35 Selected Social Media Websites Tools: CaringBridge ( Foursquare.com ( Archive ( Web Wayback Machine Bebo ( Facebook ( Fast Pitch! ( Friendster ( Gather ( Kickapps ( Linkedin ( MySpace ( Ning ( Orkut ( Plaxo ( MOLI (

36 Publishing Blogger ( Constant Contact ( Joomla ( Knol ( SlideShow ( TypePad ( Wikia ( Wikipedia ( WordPress (

37 Photos Flickr ( Photobasket ( Photobucket ( Picasa ( SmugMug ( Twixtr ( Zooomr (

38 Video Brightcove ( Google Video ( Hulu ( Metacafe ( Viddler ( YouTube ( Microblogging Plurk ( Twitter ( Twitxr (

39 SOCIAL NETWORKING SUBPOENAS Facebook:

40 SOCIAL NETWORKING SUBPOENAS MySpace:

41 SOCIAL NETWORKING SUBPOENAS Caringbridge:

42 SOCIAL NETWORKING SUBPOENAS YouTube:

43 SOCIAL NETWORKING SUBPOENAS Twitter:

44 SOCIAL NETWORKING SUBPOENAS Google:

45 Questions for Presenters? Gray T. Culbreath Collins & Lacy, P.C. Columbia, South Carolina Stephen F. McKinney Haynsworth, Sinkler & Boyd, P.A. Columbia, South Carolina

46 Social Media Webinar Series Part 4 Uses of Social Media in Discovery and Trial Thursday, June 24, 2010 Presented By the IADC Social Media Task Force and Drug, Device and Biotechnology Committee Thank you for Participating! Past Webinar Materials, Upcoming Webinars and additional information can also be found on our website: