HOW TO MAKE SOCIAL MEDIA YOUR FRIEND : LITIGATING IN THE DIGITAL AGE

HOW TO MAKE SOCIAL MEDIA YOUR FRIEND : LITIGATING IN THE DIGITAL AGE Materials By: Glenn Verchick, Esq.

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Table of Contents Introduction... 4 Discovery of Material Posted to Social Networking Sites... 6 Admissibility and Authentication of Social Media Evidence... 13 Juror s Use of Social Media... 21 Ethical Concerns Spoliation, The Duty to Preserve Evidence and Permissible Internet Research... 26 A Final Consideration... 32 3

Introduction This seminar will explore the impact of social networking sites and other electronically stored information on legal proceedings in the State of New York. People post personal information, thoughts and opinions on various social networking sites such as MySpace, Facebook and Twitter with little or no aforethought or caution. This tendency has created a new frontier upon which the savvy litigator may forage for useful information and evidence to use to his or her client s advantage. This has been especially the case in matrimonial litigation. A survey of its members by the The American Academy of Matrimonial Lawyers revealed that 81% of its members have used or faced evidence obtained from social networking sites. 1 Social media evidence is also employed in personal injury litigation, criminal law and general business litigation. A popular legal blog reported that a search of cases in the United States Courts revealed that over 600 cases dealt with social media evidence. 2 This seminar outline will first discuss discovery issues relating to social networking sites and then explore the admissibility and authentication of images and information gleaned from internet sites and then move on to spoliation issues and finish with juror use and misuse of social media before, during and after deliberation. 4

The seminar will also discuss ethical issues relating to an attorney s use of the internet to investigate, prosecute and defend cases and the obligations to advice his or her client regarding the preservation and use of social media during litigation. 5

Discovery of Material Posted to Social Networking Sites We start with the proposition that what a person posts on his or her public Facebook page, Myspace page or Twitter account, or what a company posts on a public website or blog, is discoverable, without court order, based on the fact that it is being disseminated on the internet on a site that the whole world has access to. 3 Accepting this proposition as correct, the question becomes, what social networking information that is in some way protected by the person or company posting the information, is discoverable? The answer to this question involves an analysis of the expectations of privacy of the person posting the information and an examination of the relevancy of the information to the issues in the case. One of the early cases on the issue was Romano v. Steelcase. 4 In Romano, the plaintiff claimed defendant s negligence caused her severe and serious personal injuries and that as a result she could no longer participate in certain activities and suffered a loss of enjoyment of life. The defendant demanded access to plaintiff s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information. The plaintiff objected to the discovery demand. In response, defendant made a motion for the discovery. The Court decided that the demanded information was discoverable. The Court conducted an analysis to see if the requested information 6

was material and necessary to the defense of the action and whether or not it was likely to lead to admissible evidence. The Court found persuasive the fact that plaintiff s public pages showed her, smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. 5 The Court also addressed plaintiff s claims that the discovery requested by defendant was protected by her right to privacy under the Fourth Amendment and that her privacy concerns were outweighed by the defendant s right to the information. The Court disagreed with plaintiff. The Court reviewed the privacy provisions of MySpace and Facebook and noted that they do not guarantee privacy to its users even with protected portions of one s page. The Court held that, Since plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy. 6 It is important to note that the Romano Court annunciated a test for the admissibility of a plaintiff s private protected Facebook postings; that test being: does the public postings on a plaintiff s social networking site contain images or information that is contrary to the claims being made in the case that indicate that there may be further similar information on the protected portions of the site? Under Romano, a defendant must first establish that the public 7

information is helpful to the defense and therefore makes it likely that the private postings will similarly tend to defeat plaintiff s damages claims. In the Romano case, decided in 2010, the Court noted that It found no New York case law directly addressing the issues raised by defendant s motion. However, many cases would follow. The first case from a New York State appellate division appears to be McCann v. Harleysville Ins. Co. of N.Y. 7 In McCann, plaintiff was injured in an automobile accident. She settled with the defendant driver and then pursued an underinsurance claim with the defendant insurance company. Defendant demanded an authorization for plaintiff s Facebook account. Plaintiff moved for, and was granted, a protective order regarding the Facebook authorization. Defendant appealed. On appeal, the Fourth Department felt that a protective order was not warranted but did find that defendant s request for the Facebook authorization was a fishing expedition into plaintiff s facebook account based on the mere hope of finding relevant evidence. 8 The Fourth Department found the protective order was not warranted because defendant should not be precluded from seeking disclosure of plaintiff s Facebook account in the future should it then show a factual predicate with respect to the relevancy of the evidence. 8

In Abrams v. Pecile 9, the First Department weighed in on the issue of the discoverability of social networking sites. The decision cites the Fourth Department s decision in McCann and concluded that defendant did not make any showing that the requested discovery, namely access to plaintiff s social networking accounts, would result in the disclosure of relevant evidence or was reasonably calculated to lead to discovery of information relevant to the claims being made in the case. The First Department again weighed in on the issue of discovery of a plaintiff s protected Facebook pages in the case of Patterson v. Turner Constr. Co. 10 In Patterson, a personal injury case, plaintiff claimed physical as well as psychological injuries, lost earnings and loss of enjoyment of life. Defendant sought discovery of plaintiff s Facebook records including all records deleted or archived. The First Department decided the case by remanding it to the trial court for further in camera review to determine what Facebook posting were relevant to the issues in the case and ruled that only those postings should be exchanged. The First Department noted (citing Romano) that just because plaintiff used restricted privacy settings to restrict access to her Facebook page, this would not alone shield the information from discovery the court compared the private Facebook postings to entries in a hardbound diary and, in doing so, cited and discussed the case of Faragiano v. Town of Concord, 294 AD2d 893 (4 th Dept 2002) (A diary maintained by an employee of the defendant to be 9

produced for in camera inspection and exchanged only after nonrelevant entries are redacted). One of the more interesting lower court cases that wrestled with the discoverability of a plaintiff s Facebook page is Winchell v. Lopiccolo 11. In Winchell, defendant made a blanket demand for an authorization for access to Plaintiff s Facebook pages. This strategy seemed doomed from the start based on then existing precedent which required a defendant to make a preliminary showing that unrestricted access was warranted based on the plaintiff s public Facebook pages. But, in Winchell, defendant took a different tack in its quest for unrestricted access. Defendant argued that since plaintiff claimed to be suffering from a traumatic brain injury with a motor organization deficit, memory impairments and difficulty concentrating, the defense should be allowed to view all of plaintiff s Facebook page, contending that the manner in which plaintiff uses her facebook page, including photo layouts and captions, expressiveness of language and lucidity of her statements will illuminate the nature and extent of her claimed neurological and psychological injury. 12 Plaintiff strenuously opposed the request arguing that defendant did not make any showing of entitlement to unfettered access to her pages. The Court found defendant s arguments unpersuasive and denied the request but allowed defendant to, in the future, make a demand for Facebook information if it is more narrowly tailored. The Court found that defendant made no showing of the likelihood that unfettered access 10

would yield relevant information, but rather, noted that Instead, they hope to divine the extent of plaintiff s cognitive injuries from reading every bit of information on her facebook page. 13 Probably the most illuminating opinion on the topic of discoverability of a plaintiff s restricted Facebook pages comes from a Staten Island Supreme Court Justice. In a well reasoned decision, with a conclusion that can be viewed as a culmination of what judges in all jurisdictions have been grappling with since motions over demands for discovery of social networking sites recently began appearing on dockets across the State, Justice Maltese of the Supreme Court, Richmond County, wrote in Fawcett v. Altieri 14 the following: Electronic discovery issues were once nearly the exclusive province of commercial litigation involving corporate players. However, with the expansion of the use of mobile phones that are connected to the internet, and the overall ease of access to broadband Internet connections at home, electronic discovery will quickly enter into actions where it was once thought irrelevant. Facebook s Mark Zuckerberg is correct that members of society continue to share more of their thoughts, secrets, mundane musings, photos and videos of their personal lives on social media sites. Perhaps this phenomenon is driven by feelings of anonymity in the online environment, where social media giants perpetuate the mantra that your privacy is important [citation omitted]. But, as courts have previously determined this privacy is not absolute. Information posted in open on social media accounts are freely discoverable and do not require court orders to disclose them. However, this court will not go so far as to hold that all social media records are material and necessary based solely on the fact that many people avail themselves to these social media sites. In order to obtain a closed or private social media account by court order for the subscriber to execute an authorization for their release, that adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand. The courts should not accommodate blanket searches 11

for any kind of information or photographs to impeach a person s character, which may be embarrassing, but are irrelevant to the facts of the case hand. The party requesting the discovery of an adversary s restricted social media accounts should first demonstrate a good faith basis to make the request. Absent some facts that the person disclosed some information about the subject matter of the pending lawsuit, granting carte blanche discovery of every litigant s social media records is tantamount to a costly, time consuming fishing expedition, which the courts ought not condone. Moreover, asking courts to review hundreds of transmissions in camera should not be the all purpose solution to protecting the rights of litigants. Courts do not have the time or resources to be the researchers for advocates seeking some tidbit of information that may be relevant in a tort claim. While several courts have assigned the in camera review to special masters, the fees to be paid those special masters should be paid by the party seeking the discovery in a tort case, but which may be shared by the parties in a commercial or matrimonial matter. With the volume of cases pending before our courts, simply requesting authorizations for all social media from all or most of the litigants will create an unmanageable volume of documents to be reviewed in the hope that some information directly relevant to the case will be uncovered. More likely, the information obtained would be irrelevant to the actual facts of the case, but may be used in an attempt to discredit the adversary with collateral matters. As a matter of judicial policy, such a fishing expedition is not a sufficient basis to open the flood gates of meandering thoughts or silly postings to be used to impeach a party in a simple assault or negligence action without any good cause to believe that an incriminating statement was ever made and publicized in the social media. These are not matters of national security or part of a criminal investigation. This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand. Fawcett v. Altieri 15. 12

Admissibility and Authentication of Social Media Evidence Finding valuable material on the internet that will help your client s position at trial is only half the challenge facing litigators in the age of online social networking. The second half of the challenge is ensuring that that evidence will be admitted at trial. This requires proper authentication of that evidence. Authentication is a predicate requirement to admissibility. It is proof that the evidence is what it claims to be. This seminar advocates for an author-centric approach to the authentication of statements, photographs and postings taken from internet sites. 16 An author-centric approach ensures a greater degree of reliability that the evidence is what it purports to be than an account-centric approach. An account-centric approach would allow photographs or posting to be admissible as long as there was evidence that said material came from the person s website or Facebook page against whom it is being offered. With an author-centric approach, the party would have to establish by direct or circumstantial evidence that the photograph or statement was actually posted to his or her social networking site by the party against whom it is being offered. The heightened level of authentication required under an authorcentric approach is particularly important in the internet age because of relatively easy access to a person s Facebook, Twitter or Myspace pages and because hacking is commonplace. Common instances giving rise 13

to postings made by someone other than the account holder are, for example, someone failing to log off when using a computer in a public place (e.g. library or hotel business center), or the family setting where household members all have access to and use the same computer. The danger inherent in an account centric approach has been recognized by a trial court judge in Queens County New York. In People v. Lenihan, 17 the Court precluded defendant from cross examining witnesses with photos downloaded from a MySpace page which tended to show the witnesses membership in a gang. The Court did not allow use of the photographs because there was no evidence who took the photographs or who posted them to the MySpace account. The Court stated, In light of the ability to photoshop, edit photographs on the computer, defendant could not authenticate the photographs. 18 The question to answer in an author-centric approach to authentication is: Is there direct or circumstantial evidence connecting the purported author of the post with the post? If there is direct evidence linking the author with the posting, the task is easy. The author can take the stand and testify as to the authorship of the posting. For example, if the plaintiff in a personal injury action admits at a deposition that certain photographs posted on his or her Facebook page were put there by the plaintiff. Because 14

this type of direct evidence is the easiest way to authenticate online postings, deposition questions about a person s online postings should become part of the standard line of questions asked at a deposition (assuming online postings are discovered in the investigation or discovery phase of the case). The task is more difficult when circumstantial evidence is used to connect a particular author to an online posting. A case presenting an excellent roadmap to follow, when authenticating by circumstantial evidence, is People v. Clevenstine. 19 In Clevenstine, the defendant was accused of criminal sexual contact with two teenage girls. The activity was discovered by defendant s wife who accidentally discovered defendant s MySpace account on the home computer, which account revealed instant messages between the defendant and the two teenage girls. The messages revealed the sexual nature of the relationship and that defendant had sexual intercourse with at least one of the girls. At trial, the prosecution offered into evidence a computer disk containing the electronic conversations that occurred between the defendant and the victims via instant messaging. The defense objected on grounds of lack of authentication. The Court found that the evidence was properly authenticated because: 15

(1) The victims testified at trial that they engaged in instant messaging with the defendant through the MySpace social networking site; (2) An investigator from the State Police computer crimes unit testified that he retrieved the communications from the hard drive of the victim s computer; (3) A legal compliance officer for MySpace testified that the messages had been exchanged between accounts created by the victims and the defendant; (4) Defendant s wife testified that she viewed the messages on their computer in the Defendant s MySpace account. Based on 1-4, the court found ample authentication for admission of this evidence. 20 In the case of Commonwealth v. Duncan Purdy, 21 a defendant was charged with several crimes including maintaining a house of prostitution. The prosecution attempted to introduce ten e-mails in support of its case against the defendant. This case is important for its discussion of authentication by content with distinct information which is a means of authentication by circumstantial evidence. In Duncan Purdy, the emails were retrieved from a computer located in the establishment where the house of prostitution was allegedly operated. The defense objected to the introduction of these e-mail on the grounds of lack of authentication. The defendant 16

claimed that he did not send the incriminating e-mails even though they had his e-mail signature and came from his e-mail address and were found on the computer that he regularly used. The defendant claimed that people in his establishment knew the passwords to his computer and used it regularly and he described some of the incriminating e-mails as pranks. The Court said that the trial judge s job was to determine whether the evidence was sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the e-mails. 22 The Court noted that evidence that a defendant s name is written as the author of an e-mail is not enough to authenticate it as being written by the author. There must be confirming circumstances. 23 The Court found that the e-mails were properly admitted and were adequately authenticated because the e-mails originated from the defendant s computer, which was password protected, and came from an account bearing his name, and were signed by him. In addition, some contained pictures of him and referenced descriptions particular to him. The court was not persuaded by his testimony that he did not author the e-mails and that others used his computer. The Court said that those claims were relevant to the weight of the evidence but not the admissibility. 24 [Note: the court emphasized that the claim by the defendant that the computer was used by others working in the establishment was uncorroborated. One wonders if the result would have been different if there was testimony from another witness that 17

many people in the establishment regularly used the computer and knew the password.] As part of the authentication process, a subpoena can be sent to a social networking site such as Facebook or MySpace requesting subscriber reports for a particular site. This was done in the case of Tienda v. State of Texas. 25 In Tienda, printed pages claimed to be from sites created and maintained by the defendant were admitted into evidence in a murder trial. Defendant objected based on authentication grounds. The appellate court found the pages properly used circumstantial evidence to authenticate the evidence based upon the information in the subscriber reports and based upon the unique nature of the content of the sites. In Tienda, the material which was the subject of the Facebook subpoena was subscriber reports, not content. Based on Facebook s interpretation of the Stored Communications Act, 18 U.S.C. Section 2701, et seq., Facebook does not disclose user content (i.e. messages, photos, timeline posts). 26 In response to a civil subpoena Facebook will supply basic subscriber information if it is indispensible to the case and not within the parties possession. Facebook must be served at its California address with a valid California or Federal subpoena. Out of state subpoenas must be domesticated. They require at least 30 days to respond to the subpoena. 27 18

Facebook also takes a position with regard to authentication of material posted to its network, which is, The account owner, or any person with knowledge of the contents of the account, can authenticate account content. Further, under federal and California law, business records produced by Facebook are self authenticating. 28 The case of Griffin v. State of Maryland, 29 is often cited in cases throughout the country on the issue of authentication of social networking sites. In Griffin, the Court did not allow admission into evidence a printed page from a MySpace site. The Court, however, emphasized that, we should not be heard to suggest that printouts from social networking sites should never be admitted. 30 The Court did offer three suggestions for authentication of materials from social networking sites: (1) Ask the purported creator if he or she did in fact create the profile and whether he or she added the posting in question; (2) Search the computer of the person who allegedly created the profile and posting and examine the computer s internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question; (3) Obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also linked the posting sought to be introduced to the person who initiated it. 31 [Note: Number one above is pretty much fool proof, however, 2 & 3, standing alone, come close to calling for an account-centric approach. This seminar advocates for an author-centric approach.] 19

Without the testifying witness acknowledging that the material from a social networking site being offered into evidence was authored and posted by him or her, it seems that the best approach to authentication of social networking site evidence would be to follow the guidelines of People v. Clevenstine, supra, which, interestingly enough, was cited favorably in the Griffin 32 decision. It should be noted that some Courts have permitted e-mails and posting on social networking sites based on what is commonly referred to as the reply doctrine this doctrine is dated and harks back to the days of the mailed letter and telegram and relies on the concept that if a letter or telegram is sent to a person and a reply is received in due course purporting to come from that person, this is sufficient evidence of genuineness. 33 20

Jurors Use of Social Media A trial lawyer should anticipate that members of a jury may use the internet to research parties, lawyers, witnesses and issues involved in the case. A trial lawyer should also anticipate that a juror may connect with a party, lawyer or witness in a case through texting, tweeting or a social networking site. A 2011 report prepared by the Federal Judicial Center 34 reported the following based on a survey of over 500 judges: -6% of the responding judges detected instances of juror use of social media in a trial they presided over. -Judges detected juror use of the following types of social media during trials or deliberations: Facebook, Google, instant messaging, Twitter, internet chat room or bulletin board and Myspace (Facebook and Google being the most common type encountered). -Three judges reported that a juror attempted to friend a participant in the case and three judges reported that a juror attempted to, or did, communicate with a participant in the case. -The responding judge s did say that it was difficult to detect jurors inappropriate use of social media. It was reported that judges learned about juror social media use from the attorneys in the case, other jurors, court staff, or a party to the case. The report from the Federal Judicial Conference confirms that although juror use of social media during trials is not known to be a widespread problem, it does happen and trial lawyers should acknowledge it and be prepared to deal with it. The best approach to addressing potential juror misuse of social media problem is to prepare for, detect and prevent the problem. 21

One should prepare for possible juror use of social media by doing pretrial research. Review your firm s website, LinkedIn page, blogs, and other postings with the thought that a juror may view these postings; further consider how it would affect their outlook on the case, if at all. Review you client s web presence. Would it negatively affect a juror s outlook on the case? Review your opposing parties websites and web postings is your adversary attempting to influence the case by internet postings? A motion in limine may be necessary to address these issues. During the trial, be vigilant to detect juror use of social media. Your client should also be alert to detect social media use during a trial. If suspected, it should immediately be brought to the court s attention. The court will (or should) analyze if the juror s actions will have a prejudicial effect on either party. In the case of People v. Jamison, 35 Defendant made a post trial motion to overturn the jury verdict against him, based, in part, on information that one of the jurors had Googled the defense attorney and learned that he was not a Legal Aid lawyer and had a private practice. The Court did not overturn the verdict finding that the juror s internet use did not create a substantial risk of prejudice to the defendant. In People v. Lara 36, a juror collected weather information from the internet but such action did not create a substantial risk of 22

prejudice warranting setting aside of the verdict. A juror s internet research may prove to be harmless, but nonetheless it should not go unaddressed. One should take necessary steps to prevent juror misuse of the internet during trials. More important than preparing for and detecting social media use by jurors is ensuring that jurors and potential jurors are properly instructed on the impropriety of using the internet and its vast resources as an tool for considering and deciding the issues in the case. This should be done during jury selection and again before the trial starts, and then during the trial, and as part of the pre-deliberation instructions to the jury. In addition to frequent reminders to the juror, said instructions should be specific and address all types of internet research and communications. Some jurors may be under the mistaken impression that they are helping by doing their own research. Some jurors may feel it is harmless to text a friend about something they observe during a trial. The frequent instructions must be designed to put a halt to the average juror s preoccupation with texting, Tweeting, Googling and e- mailing at least with relation to the people and issues involved in the case. New York Pattern Jury Instructions, Third Edition, 2013 addresses the issue in the General Charges, Charges Prior to Trial, at Section 1:11 entitled Discussion With Others Independent Research. This 23

section s instruction to the jury on social media and the internet reads as follows: Do not do any independent research on any topic you might hear about in the testimony or see in the exhibits, whether by consulting others, reading books or magazines or conducting an internet search of any kind. All electronic devices including any cell phones, Blackberries, iphones, laptops or any personal electronic devices must be turned off while you are in the court room and while you are deliberating after I have given you the law applicable to the case. It is important to remember that you may not use any internet services, such as Google, Facebook, Twitter or any others to individually or collectively research topics concerning the trial, which includes the law, information about any of the issues in contention, the parties, the lawyers or the court. After you have rendered your verdict and have been discharged, you will be free to do any research you choose, or to share your experiences, either directly, or through your favorite electronic means. 37 The shortcoming, if any, with the New York PJI charge is that it does not explain to the jurors the reasoning behind the prohibitions. In the Federal Judicial Center report, the responding judges strongly endorsed explaining to jurors in plain English the reasoning behind the social media ban as a way beyond the standard instructions to ensure jurors do not use social media. 38 The Federal Judicial Center Report includes in an appendix a number of sample charges from judges around the country. One of the more thorough on social media use is from Judge William T. Moore Jr., from the Southern District of Georgia which reads, in pertinent part, as follows: I want to impress upon you that this is a strict prohibition against any outside research or communication applies not only to printed reference materials, such as dictionaries or encyclopedias, but also to the internet and all other electronic 24

mediums. For example, you cannot use Google or any other internet search engine to learn anything about this trial. Also, you cannot use Wikipedia to look up definitions or legal concepts that are present in this case. You cannot blog or tweet about anything relating to this case or to your service as a juror. You may not use Twitter, Facebook, MySpace LinkedIn, YouTube, Google +, or any other social networking service to send or receive messages about this case or to friend anyone involved in this case. Until the conclusion of this trial, the court prohibits you from conducting any online research or engaging in any communication with outsiders concerning this case. Most, if not all, of you use cell phones, Blackberries, iphones, or other smart phones or computers to communicate with others. During this trial, you cannot communicate to anyone any information about this case, your opinions or views about it, or the individuals participating in it by any method or means. Even posting one-way status messages about this trial or your impressions as a juror would be a violation of your oath. If you are in any way unsure whether you are about to engage in an activity prohibited by these instructions, you should not engage in that activity and immediately seek clarification from the court by passing a note to a court security officer for my review. But, you should always err on the side of caution. Also, you should immediately notify the court if you feel that you are unable to abide by these prohibitions, or if you become aware that any of your fellow jurors may have violated or may be intending to violate these restrictions. Any failure to adhere to these prohibitions will result in an unfair trial because, as I stated before, the accuracy or admissibility of the information that you view or receive online has not been tested by the parties. In this sense, a juror s improper use of outside technology threatens the very nature of our adversary system. Indeed, it is a very real possibility that a juror s improper use of outside technology could force the court to start the trial all over, wasting yours, this court s, and the parties valuable time and resources. Furthermore, the court will treat any use of outside information as a violation of your oath as a juror. This court will not hesitate to hold an offending juror in contempt of court or sequester the entire jury for the remainder of the trial. 39 Probably the most disconcerting statistic drawn from the Federal Judicial Center report is that 79% of the judges asked replied that 25

they had no way of knowing if jurors have violated the social media prohibition, but assumed they had not. It may be a dangerous assumption to make, especially in a lengthy complex case. Therefore, vigilant attention to juror activity and alertness for social media breaches is essential for the trial lawyer in this day and age. Ethical Concerns Spoliation, The Duty to Preserve Evidence and Permissible Internet Research A plaintiff or a defendant can be subject to a variety of sanctions based on deliberately destroying electronically stored evidence or for negligently deleting or losing such evidence. Attorneys should treat e-mails, Twitter accounts, Facebook, MySpace pages and websites just like any other form of photographic or documentary evidence. A client should be instructed that his or her Facebook and MySpage postings may be evidence in the case and to treat it accordingly. Deleting pictures from a social networking site, deleting Tweets and deleting website postings in anticipation of litigation can be problematic. In VOOM HD Holdings LLC v. EchoStar Satellite, LLC, 40 the Court ruled that a defendant should have reasonably anticipated litigation approximately six months before the action was commenced and, at that point in time, put in place a litigation hold to ensure preservation 26

of evidence. Since this defendant did not adequately and timely take all necessary steps to preserve relevant e-mails, the court sanctioned this defendant by ruling that a negative inference charge should be given to the jury at the time of trial. The VOOM case involved a breach of contract claim and a corporate defendant s failure to put in place a method for all employees to preserve relevant e-mails. The decision recited reprehensible conduct by the spoliating defendant and, it is not hard to imagine that the Court could have easily leveled a harsher sanction. In 915 Broadway Assoc., LLC v. Paul Hastings, Janofsky & Walker, 41 a similar scenario played out, and in this case the Trial Court found that the appropriate sanction for spoliation of electronically stored evidence was striking of the guilty parties pleading. VOOM and 915 Broadway Assoc. LLC are well reasoned and thoughtful decisions in commercial litigation cases that are also instructional for the personal injury attorney, the matrimonial lawyer and other litigators. Once a party anticipates litigation, serious consideration should be paid to the use and handling of one s social networking site as well as other electronically stored information. Some personal injury law firms are sending litigation hold letters to their clients regarding their social networking sites. Other firms are including social networking evidence preservation responsibilities in the 27

initial retainer agreements. Addressing the issue with the client in writing at the beginning of the case is probably a good idea. There is no reported decision in New York directly on point, but it is reasonable to conclude that directing a client to delete material posted on a social networking site (without preserving a copy of same) once it is anticipated that the client will be involved in litigation, and where such postings potentially are relevant to the issues in the case, would possibly be an action subject to sanctions and potentially an activity that could be deemed to be unethical. The Virginia case of Allied Concrete v. Lester, 42 supports the aforementioned conclusion. Allied was a personal injury/wrongful death case. In Allied, the defendant made a discovery demand relating to the contents of plaintiff s Facebook account. The demand was prompted by photographs viewed by defendant s attorney on plaintiff s Facebook page showing plaintiff drinking beer and wearing a T-shirt with the saying, I hot moms. 43 Following the demand, the plaintiff, apparently at the suggestion or direction of his attorney or a paralegal at the firm, deleted ten of the photographs from his Facebook page. Plaintiff s attorney also told his paralegal to tell the plaintiff to clean up his Facebook page because we don t want blowups of that stuff at trial. In addition, Plaintiff s attorney worked with plaintiff to take down his Facebook site and then represented to the defendants that he had no Facebook page as of the 28

date the response was signed. Defendants made a motion to compel, plaintiff s attorney reconsidered his position (and acts of deception) and told an associate to screen-print the plaintiff s Facebook pages. Plaintiff, on his own and without his law firm s knowledge, deleted 16 photos before the pages were screen printed. Defendants hired an IT expert who concluded that 16 photographs were in fact deleted. Plaintiff s IT expert confirmed the offending act and that plaintiff s account had been deactivate for a certain period of time. Based on the foregoing, the defense made a spoliation motion and such was granted and a negative inference charge was given at the trial. Despite the negative inference charge, the jury returned a verdict in favor of the plaintiff for a total amount of just over 10.5 million dollars. The defendants made a post-trial motion asking that the verdict be overturned, arguing that they did not get a fair trial, in part, because of the willful deceptive destruction of the pictures in question. They also moved for monetary sanctions against plaintiff and plaintiff s attorney for deceptive tactics with regard to the Facebook page shenanigans. The Court imposed monetary sanctions in the amount of $542,000.00 against the attorney, for his role in the willful spoliation, and sanctioned plaintiff $180,000.00. The Court also referred the plaintiff to the Commonwealth Attorney for review of the allegations of perjury (because he lied at his deposition about deleting the photos and deactivating his Facebook account). In addition, the plaintiff s attorney was referred to the Virginia State 29

Bar for allegations that he violated the Code of Professional conduct with regard to the Facebook manipulating actions. The Lester verdict was then appealed by defendants. On appeal, on the issues of Facebook account, the Appellate Court felt that the Trial Court adequately dealt with the issues as the case progressed and during trial properly charged the jury with a negative inference charge (once when plaintiff was testifying and again at the close of evidence). The charge read as follows: The Court instructs the jury that the Plaintiff, Isaiah Lester, was asked in discovery in this case to provide information from his Facebook account. In violation of the rules of this Court, before responding to the discovery, he intentionally and improperly deleted certain photographs from his Facebook account, at least one of which cannot be recovered. You should presume that the photograph or photographs he deleted from his Facebook account were harmful to his case. 44 The best advice to an attorney with a client who is active on social networking sites, is to review his or her online presence at the beginning of the case, explain that it may be evidence in the case, explain his or her obligation to preserve relevant evidence and to give caution that going forward, everything posted online is fair game for the opposition. Putting these instructions in writing and transmitting them to the client is advisable. 30

Can a Lawyer Friend an Adverse Party? According to NYSBA Opinion #843 (9/10/2010), a lawyer, or someone on her behalf, can view public pages of a represented person but cannot friend that person without violating the Rules of Professional Conduct Rule 4.3. 45 According to NYCBA Formal Opinion 2010-2, a lawyer or her agent can use her real name and profile to friend an unrepresented person to obtain information from his or her social networking site without disclosing the reason for the request. The lawyer or agent cannot use untruthful information to gain access to the information on the site. 46 Researching the Jury with Social Networking Sites It is ethical and a good practice to research potential jurors by searching for publicly posted information on social networking sites. The New York City Bar Association has issued Formal Opinion 2012-2 and has determined that such practice is permissible as long as it is done without the lawyer knowingly, unknowingly or inadvertently causing a communication with a juror. 47 In doing so, the New York State Bar Association acknowledges being in agreement with the New York County Lawyers Association on the matter (NYCLA Formal Opinion 743). Formal Opinion 2012-2 notes that, in the New Jersey case of Carino v. Muenzen, 48 the Appellate Court held that the Trial Court improperly prohibited plaintiff s attorney from using a laptop 31

computer to research prospective jurors through social networking sites. The prohibition against unknowingly causing a communication to occur puts the onus on the trial lawyer to understand how various social networking sites function and understanding that some sites notify a person that someone has looked at his or her site. A Final Consideration A trial is the search for the truth or at least that is what it aspires to be. By introducing social media content as evidence in a trial, are we, as trial lawyers, doing so with the intention of introducing accurate, unvarnished information? Will jurors consider this evidence based on the very nature of social networking sites and the fact that people use them to socialize rather than to post accurate information and thoughts? As a recent New York Times article commented,... in general Facebook feeds on fiction; it consumes it, and spits it out in every direction. 49 As Professor Ira P. Robbins noted, People are stupid when it comes to their online postings. 50 In a recent article in the Pace Law Review, Junichi P. Semitsu stated, Facebook is not just a website. It is a controlled ecosystem that inspires its inhabitants to share personal information and reveal intimate thoughts. It is an evolving 32

digital world that eliminates the limitations of time and distance, time, technology, and body odor in real Space to create connections and communities unimaginable in the twentieth century. 51 The real challenge ahead for the trial lawyer may not be mining the internet for damaging information to use against an adversary, but, rather, honing the ability to deftly explain away your client s damaging postings on social networking sites. People use irony, sarcasm, exaggeration, half-truths and humor when posting their thoughts and ruminations to their online friends. Many postings are far from accurate and often can be misleading, unfunny and stupid it is the nature of the beast. Can the jury be advised to view a damaging online posting in the proper light? For example: Members of the jury, you have seen pages from plaintiff s Facebook site reflecting humor, irony, satire and highly uninformed opinions, as well as photographs depicting her in questionable attire and wearing silly expressions. I want to caution you that although you may consider these images and postings in your deliberations, you may also take into account that plaintiff posted these images and comments for the sole and only purpose of amusing her friends and relatives and for the sole and only purpose of socialization and that they do not necessarily reflect her true condition or state of mind but rather are part of her participation in a global phenomenon that inexplicable allows and encourages its participants to speak and post thoughts, pictures and ideas with very little, or no, aforethought. Of course this proposed charge is pure satire, but as trial lawyers on the new frontier, we should spend some time considering the way in which people use social media and the reasons behind why people feel 33

so free to broadcast personal information, random comments and unconsidered opinions on the world wide web. 1 Leanne Italic, Facebook is Divorce Lawyers New Best Friend, MSNBC.com, June 28, 2010, http://www.msnbc.msn.com/id/37986320/. 2 http://blog.x1discovery.com/2012/03/14/689 published cases involving social media evidence news and resources 3 Fawcett v. Altieri, 100008/12, NYLJ, 1202584643383, at*1 (Sup., RI, Decided January 11, 2013) In this decision, Justice Maltese notes, Information posted in open on social media accounts are freely discoverable and do not require court orders to disclose them. 4 30 Misc.3d 426 (Sup. Ct., Suffolk County 2010). 5 Id. at 430. 6 Id. at 434. 7 78 AD3d 1524, 910 NYS2d 614 (4 th Dept 2010). 8 Id. at 1525. 9 83 AD3d 527, 922 NYS2d 16 (1 st Dept 2011). 10, 88 AD3d 617, 931 NYS2d 311 (1 st Dept 2011). 11, 954 NYS2d 421 (Supreme Ct., Orange Cty. 10/19/12). 12 Id. at 423. 13 Id. at 424. 14 100008/12, NYLJ 1202584643383, (Sup., RI, Decided January 11, 2013). 15 100008/12, NYLJ 1202584643383, at p. 5(Sup., RI, Decided January 11, 2013). 16 Much of this seminar s adherence to the author centric approach for authentication is based on the thoughtful analysis of the topic by Ira B. Robbins, in Writings on the Wall: The Need For An Authorship Centric Approach To The Authentication of Social Networking Evidence, American University School of Law Research Paper No. 2011 31, at page 17. 17 30 Misc3d 289, 911 NYS2d 5088 (Sup. Ct. Qns. Cty., Decided November 12, 2010). 18 Id. at 294. 19 68 AD3d 1448, 891 NYS2d 511 (3 rd Dept. 2009). 20 Id. at 1451. 21 459 Mass. 442 (2011). 22 Id. at 447. 23 Id. at 450 451. 24 Id. at 451. 25 358 S.W.3d 633 (Court of Criminal Appeals of Texas, February 8, 2012). 26 http://www.facebook.com/help/473784375984502. 27 Id. 28 Id. 29 19 A.3d 415, 419 Md. 343 (Court of Appeals Maryland, April 28, 2011). 30 Id. at 427. 31 Id. at 427 438. 32 See, Griffin v. State of Maryland, 19 A.3d 415, 428. 33 See, Id. at page 417. 34 http://www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf. 35 24 Misc3d 1238(A), 899 NYS2d 62 (Supreme Court, Kings County, August 18, 2009). 36 44 AD3d 488 (1st Dept. 2007). 37 1A NY PJI 3d 1:76, at 39 40 (2012). 38 http://www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf at page 8. 34

39 http://www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf, Appendix H, at page 32 33. 40 93 AD3d 33, 939 NYS2d 321 (1 st Dept. 2012). 41 34 Misc.3d 1229(A) (Sup. Ct., N.Y. Co. 2012). 42 S.E.2d, 2013 WL 119666. 43 Defense counsel was able to view plaintiff s Facebook site because plaintiff sent a message to the defense attorney. It is unexplained in the decisions in the case why plaintiff did this. It is also explained in the lower court decisions in the case that plaintiff s attorney had never heard of Facebook before this case. 44 Id. 45 http://www.nysba.org/am/template.cfm?section=home&template=/cm/contentdis. 46 http://www.nycbar.org/ethics/ethics opinions local/2010opinions/786 obtaining evidence. 47 http://www.nycbar.org/ethics/ethics opinions local/2012opinions/1479 formal opinion 20. 48 A 5491 08T1, 2010 N.J. Super. Unpub. LEXIS 2154 N.J. Super. Ct. App. Div. Aug 30, 2010. 49 New York Times, The Language of Fakebook, by Katie Roiphe, August 13, 2010. 50 Writings on the Wall: The Need For An Authorship Centric Approach To The Authentication of Social Networking Evidence, American University School of Law Research Paper No. 2011 31, at page 1 51 Junichi P. Semitsu, From Facebook to Mug Shot: How the dearth of Social Privacy Rights Revolutionized Online Government Survailance, 31 Pace L. Rev. 291 (2011) at p. 3. 35