Effective Use of Social Media in Litigation

Transcription

1 Effective Use of Social Media in Litigation April 30 May 1, 2014 Copyright 2014 by K&L Gates LLP. All rights reserved.

2 PANELISTS Paul W. Sweeney, Jr. Partner, Commercial Disputes K&L Gates LLP Kevin S. Asfour Partner, Commercial Disputes K&L Gates LLP klgates.com 2

3 Overview of Program Social Media Overview Institutional Risks / Concerns & Mitigation Uses of Social Media in Litigation Acquisition of Social Media Evidence Authentication & Proffering of Evidence klgates.com 3

4 Social Media Overview

5 klgates.com 5

6 1. Types of Material Available Posts/communicative statements Photographs & videos Statuses & other identifying information Employment status/position Marital/relationship status Geographical location Permanent (e.g., place of residence) Ephemeral (e.g., Foursquare check-ins ) klgates.com 6

7 1. Types of Material Available (cont.) Friendships & connections with individuals & organizations Key personnel (for institutions) klgates.com 7

8 2. Sources Networking platforms Social emphasis (e.g., Facebook, Google Plus) Professional emphasis (e.g., LinkedIn) Dating emphasis (e.g., eharmony, Match.com) klgates.com 8

9 2. Sources (cont.) Blogs & microblog platforms Examples: Twitter, Instagram, Tumblr Initial blog posts Comments/discussions on posts Web forums / discussion boards Traditional personal websites klgates.com 9

10 Institutional Risks/Concerns & Mitigation

11 Institutional Risks/Concerns & Mitigation 1. Personnel disclosing sensitive/damaging information 2. Employees making unauthorized statements/ admissions that could be attributable to employer 3. Employees taking positions inconsistent with employer s stance klgates.com 11

12 Institutional Risks/Concerns & Mitigation (cont.) 4. Employees breaching confidentiality obligations of employer Example: Trade secret agreements. 5. Obligations to preserve, collect & produce in response to formal discovery demands klgates.com 12

13 Institutional Risks/Concerns & Mitigation (cont.) 6. Corresponding spoliation / adverse-inference consequences for failing to do so. See John G. Browning, Burn After Reading: Preservation and Spoliation of Evidence in the Age of Facebook, 16 SMU Sci. & Tech. L. Rev klgates.com 13

14 Institutional Risks/Concerns & Mitigation (cont.) 7. Prophylactic Measures Formal company policies re. social media Identification of personnel online. Disclaimer of views. Note: Even if these policies are not always obeyed, they can provide cover to distance company from unauthorized statements. Caveat: Potential NLRA issues with overly restrictive social networking policies. See NLRB Memo. OM (May 30, 2012). klgates.com 14

15 Institutional Risks/Concerns & Mitigation (cont.) 7. Prophylactic Measures (cont.) Company policies re. use of IT resources for social media tasks When employee is authorized to post on behalf of company (e.g., PR official): Ensure log-in credentials are available to and can be retrieved/revoked by an officer(s). This helps ensure continuity, prevent terminated employee from going rogue, etc. See HMV Employee Commandeers Corporate Twitter Account in Response to Layoffs, Businessweek.com, Jan. 31, 2013 ( klgates.com 15

16 Uses of Social Media in Litigation

17 Uses of Social Media in Litigation 1. Use as investigative tool. Learn more about adverse party. Help identify: Potential witnesses Relevant events, facts, issues klgates.com 17

18 Uses of Social Media in Litigation (cont.) 2. Obtain evidence for use at trial, on dispositive motions, or in settlement negotiations. Examples: Rebut existence/extent of physical injuries. Refute claims of harassment, emotional distress, etc. klgates.com 18

19 Uses of Social Media in Litigation (cont.) 2. Obtain evidence (cont.) Examples: (cont.) Disprove wage/hour claims. Example: Refute purported overtime work via employee postings on social websites. Bolster punitive damages claim. Demonstrate party s despicable attitude toward conduct, which is in need of punishment (analogous to use of social media by criminal prosecutors during sentencing). klgates.com 19

20 Uses of Social Media in Litigation (cont.) 2. Obtain evidence (cont.) Examples: (cont.) Obtain aggregate evidence of public sentiment. Establish/rebut consumer confusion in IP cases. See Jennifer K. Gregory, #BewareOfOvershare: Social Media Discovery and Importance in Intellectual Property Litigation, 12 J. Marshall Rev. Intell. Prop. L. 449 (2013). Demonstrate impact of defamatory statements on public perception. klgates.com 20

21 Uses of Social Media in Litigation (cont.) 3. Investigate/impeach adverse witnesses. 4. Investigate/impeach adverse experts. 5. Learn about opposing counsel. 6. Learn about judge. Caveat: Interactive and/or ex parte communications prohibited klgates.com 21

22 Uses of Social Media in Litigation (cont.) 7. Learn about prospective or seated jurors. [C]lients now often expect that attorneys will conduct such research. Indeed, standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case. N.Y. City Bar Formal Opn (2012) (emphasis added); see also N.Y. County Formal Opn. 743 (2011); ABA Model Rule 1.1 cmt. 8 (2012) ( To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology ) klgates.com 22

23 Uses of Social Media in Litigation (cont.) 7. Learn about prospective or seated jurors. (cont.) Caveat: Interactive and/or ex parte communications are strictly prohibited. See, e.g., San Diego County Bar Legal Ethics Opn (2011). Examples: Subscribing to a juror s Twitter feed (since the juror will receive a notification); Visiting a LinkedIn page under default settings (which drops a virtual calling card ); Submitting a friend request on Facebook, etc. See LinkedIn Search Nearly Upends BofA Mortgage Fraud Trial, Law360, Sep. 27, klgates.com 23

24 Uses of Social Media in Litigation (cont.) 8. Monitor compliance with settlement confidentiality obligations. See, e.g., Girl Costs Father $80,000 With Facebook Post, CNN.com, Mar. 4, 2014 ( klgates.com 24

25 Acquisition of Social Media Evidence

26 Acquisition of Social Media Evidence 1. Unilateral Acquisition By counsel Ethical authorities affirmatively bless attorney s unilateral acquisition of publicly accessible social media data. See, e.g., N.Y. State Bar Eth. Comm. Opn. 843 (Sep. 10, 2013); Oreg. State Bar Eth. Comm. Opn (Feb. 2013). Attorney (or agent) cannot use pretexting to gain access to private information. See, e.g., Phil. Bar. Assn. Prof. Guid. Comm. Opn (2009); San Diego County Bar Legal Ethics Opn (2011); Cal. Rule Prof. Cond ; ABA Model Rule 4.2; but see N.Y. City Bar Formal Opn Example: Information accessible only to friends klgates.com 26

27 Acquisition of Social Media Evidence 1. Unilateral Acquisition (cont.) By counsel (cont.) Be careful not to interact with represented parties even inadvertently. Example: Automatic dropping of LinkedIn calling card Sending a friend request to an unrepresented non-party (e.g., a third-party witness) may nonetheless require the attorney to disclose the purpose of the request. See Phil. Bar. Assn. Prof. Guid. Comm. Opn (2009); but see N.Y. City Bar Formal Opn klgates.com 27

28 Acquisition of Social Media Evidence (cont.) 1. Unilateral Acquisition (cont.) By outside vendor/investigator Firms specializing in scraping social media data. Caveat: Attorneys cannot circumvent ethical rules by way of an agent or proxy. See, e.g., John G. Browning, Keep Your Friends Close and Your Enemies Closer: Walking the Ethical Tightrope in the Use of Social Media, 3 St. Mary's Journal of Legal Malpractice & Ethics 204, 225, (2013). By party klgates.com 28

29 Acquisition of Social Media Evidence (cont.) 2. Acquisition of private data through formal discovery demands may be feasible. Case law is evolving. Judicial trend: Require seeking party to lay foundation for potential relevance, beyond mere speculation. Demands to adverse party may include items such as: Requests for production of documents Interrogatories that demand posting aliases or handles klgates.com 29

30 Acquisition of Social Media Evidence (cont.) 2. Formal discovery demands (cont.) Subpoenas to third-party service providers/custodians Limitation: The Stored Communications Act (18 U.S.C. 2701, et seq.) prohibits social media sites and Internet service providers from disclosing content of electronic communications without user s consent, even when faced with a subpoena. See, e.g., Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, (C.D. Cal. 2010). Note: Certain information can be obtained via subpoena, e.g., access logs. klgates.com 30

31 Acquisition of Social Media Evidence (cont.) 3. Consider sending adverse party a litigation hold demand that extends to social media. 4. Potentially severe spoliation issues. Example: Combined $722,000 in sanctions awarded against attorney and client after attorney instructed client to clean up his Facebook page and client obliged. Lester v. Allied Concrete Co., 2011 WL (Va. Cir. Ct. Sep. 1, 2011), 2011 WL (Va. Cir. Ct. Oct. 11, 2011). klgates.com 31

32 Authentication & Proffering of Evidence

33 Authentication & Proffering of Evidence 1. Lay a foundation. How and when evidence was acquired How evidence was preserved klgates.com 33

34 Authentication & Proffering of Evidence 2. Establish identify of poster. Party or witness may deny (accurately or not) that he/she made the posts. Poster s name may be common. Others may have access to poster s log-in credentials, with permission. Others may have stolen or hacked poster s log-in credentials. The account may never have belonged to alleged poster. Other party may have created it to spoof or frame alleged poster. klgates.com 34

35