The rise of social media platforms has drastically changed everyday life. We are now constantly linked to and receive instant updates from our social media connections, and personal information is startlingly simple to access now, more than ever. How has the legal sphere adapted to these changes? Social media has affected the legal world in very interesting ways, from jury selection to new applications of older laws in social media litigation. With this in mind, we spoke with two lawyers about the intersection of social media and litigation to learn more about this burgeoning field and the intriguing legal issues therein.
Nicholas Gaffney (NG) is a member of the Law Practice Today Editorial Board and a veteran public relations practitioner.
|Samantha V. Ettari (SE) is e-discovery counsel at Kramer Levin Naftalis & Frankel. Ms. Ettari’s practice focuses on general commercial litigation, with an emphasis on complex contract disputes, bankruptcy litigation, and regulatory defense. Ms. Ettari, who has published extensively on e-discovery, counsels clients and members of the firm on issues relating to electronic discovery. She earned a J.D., magna cum laude, from Brooklyn Law School and a B.A., magna cum laude, from the State University of New York at Geneseo.
|Erik S. Syverson (ES) is a well-known cyber liability litigator at Raines Feldman, LLP. He understands the nuances of cyber-crimes and the underlying technology enabling such crimes to be committed. Mr. Syverson has devoted the last 10 years of his practice to cyber-liability cases, typically focusing upon federal and state statutes involving criminal and civil liability. Examples include the Computer Fraud and Abuse Act, the Electronic Communication Privacy Act, the California Penal Code, the Lanham Act and the Digital Millennium Copyright Act.
NG: How are litigators using social media for discovery of information about clients, opponents, witnesses, and others in an attempt to gain otherwise non-disclosed material that could help win or lose a case?
SE: Social media is a fantastic tool for discovering potential evidence for an affirmative case or defense—like any other form of evidence, social media platforms should not be overlooked as a potential source of information. In the formal discovery process, it should be routine practice to include a request for the search and review of social media platforms in discovery requests if the underlying subject matter of the dispute provides a good-faith basis for belief that there is social media evidence relevant to the litigation. Many courts across the country are allowing discovery of social media, regardless of privacy settings. If you put something out there on a social media platform and it is responsive to discovery and relevant to the litigation, it will likely be ordered produced. Of course, there are ethical considerations when—outside of formal discovery—an attorney is doing informal discovery through online research of an adversary or witnesses, but that’s slated for discussion below.
ES: Many people live their lives online and completely expose their activities. We use social media for any kind of information you can think of. We can use it to pick jurors on voir dire or get them excused for cause. We can use it to locate and serve difficult to find parties and witnesses. I have used it at trial to prove that someone was not where they claimed to be at the time of a tort. It won the case for us. Admissibility is the only limit on the usefulness of social media and that is not too much of a bar these days. Judges are increasingly comfortable with admitting social media evidence.
NG: What are the pitfalls in researching or connecting with jurors or judges through social media?
SE: Many bar associations have provided ethical guidance on researching jurors through social media, and I would caution readers to be familiar with their state ethics rules and any decisions by local or state ethics committees. Of course, social media research can provide useful and necessary insight into a jury, but it should be undertaken in an appropriate manner. Attorneys are normally prohibited from having contact with jurors, so a big pitfall with social media is whether the research can be characterized as a contact. Researching public pages of a juror may be permissible, but sending a friend request and connecting with a juror would be impermissible under the ABA opinions and in many jurisdictions.
ES: Number one, I would never connect with the bench via social media. I just don’t think it is in good taste. The pitfalls are relatively obvious I think. First, there is a record of your conduct. So, if you inappropriately contact a judge or juror, there is a record that will come back to bite you. Second, you risk coming away with a false picture; social media is a full of inaccurate information and perceptions.
NG: Could merely being connected with or followed by a judge create a relationship that merits recusal?
SE: I suggest caution. There have been ethics decisions on this topic. For example, in New York, a justice in the Appellate Division, First Department sought guidance on whether a Facebook friendship with an acquaintance mandated recusal. In response, Opinion 13-39 noted that judges, “should be mindful of the appearance created when he/she establishes a connection with an attorney or anyone else appearing in the judge’s court through a social network… [and]must, therefore, consider whether any such online connections, alone or in combination with other facts, rise to the level of a… relationship requiring disclosure and/or recusal.” While following a court or jurisdiction’s Facebook page or YouTube channel may be fine, I wouldn’t recommend having an active social media relationship (or even a passive one) with a judge before whom you might appear.
ES: I think so. I would never do it. I see no upside. I like to keep my relationships with the bench confined to the four corners of the courtroom or bar association cocktail parties. Anything more is asking for trouble. Why? Because there is a record of social media interaction whereas there is not likely to be a record of a casual cocktail conversation with a judge. If a case is going your way and your opponent discovers a social media connection with the judge, you are going to have disqualification motions and likely appellate practice. Who needs the aggravation?
NG: Are there malpractice considerations if lawyers fail to conduct social media searches?
ES: I think that depends on the circumstance. I can see it being a big malpractice issue especially in the world of personal injury law. I think anybody defending a case where pain and suffering and permanent physical injury are at issue must dig into the plaintiff’s social media from day one. On the other side of the coin, plaintiffs need to either stay off social media or let their lawyers screen everything before it gets posted.
NG: What are the ethical considerations when connecting with opponents on social media? May lawyers use false names or accounts to gather potentially damaging information?
SE: If by opponent, you mean an opposing party, there are ethics rules governing this area of social media use as well, and it is a thorny area. Generally, a lawyer may not access private or non-public portions of a represented party or witness’s social media accounts if in order to do so the lawyer would have to “friend” or “follow” the account holder. In New York, recent ethics guidelines and decisions have approved a lawyer friending an unrepresented individual without disclosing the reason for the request as long as it does not involve any type of trickery. Using a false name to mask the lawyers identity would fall within that prohibition. In fact, some ethics committees (such as in New Hampshire and San Diego) issued opinions requiring a lawyer to both use his real name and also identify the client, the matter, and his role in the dispute. The Sedona Conference also cautions against this kind of deceptive behavior as being a potential ethics violation.
ES: I don’t see any ethical problem with that. I consider that work product and investigation.
NG: Are courts receptive to evidence gained through social media? Can it stand on its own or must litigators present supporting evidence? If social media users utilize the privacy settings on their accounts, will that prevent using postings as evidence?
SE: Privacy settings on social media accounts are not likely to keep relevant evidence from being discovered. Many courts have taken the position that if you posted a comment or a photograph to social media, despite the tightest privacy settings, the material is still discoverable. There are some exceptions. Authenticating social media can present a challenge, however, when it comes time to use it in support of your case. The jurisprudence on how to authenticate social media specifically is still developing. Last year (2014), the Second Circuit Court of Appeals in United States v. Vayner touched on the issue of authenticating a Facebook account, holding that the government had not provided “a sufficient basis on which to conclude that the proffered printout was what the government claimed it to be – the [defendant’s] profile page…” The Second Circuit panel discussed many possible ways to authenticate evidence generally, and other courts have discussed how to authenticate social media specifically. Lawyers should look within their jurisdiction for guidance so that they can properly authenticate the social media for use in summary judgment or at trial during the discovery stage. Because of the ease in which a social media account can be created under a false name or with a made-up email address, authentication can require thoughtful planning and execution. Some social media providers require minimal information to open an account, making authentication more difficult.
ES: I think courts have become very comfortable with social media evidence. This happened over the course of the past 10 years. Now that courts generally understand the technology behind social media, I think most see social media as reliable and self-authenticating. Privacy settings, however, are a big issue and I think a big hurdle in many cases. In the criminal law world, Riley v. California brought the Fourth Amendment into the digital age by holding unanimously that law enforcement must acquire a search warrant before searching a phone. I think that logic can be extended to social media accounts as well. In the civil context, there are a lot of land mines that lawyers and their investigators can step into when it comes to social media privacy protections. The last thing you want to do is get your firm or your client sued for invasion of privacy or a violation of statute like the Computer Fraud and Abuse Act or Electronic Communications Privacy Act. Finally, relevance is always the starting point when it comes to admissibility of social media evidence and often evidence gleaned from social media is used just to throw mud or gain sympathy from the jury.
NG: How can litigators control their own clients’ use of social media posts that can harm their cases or waive attorney-client privilege or the duty of confidentiality? If previous posts are deleted does that give rise to a spoliation claim?
SE: Advising clients on litigation holds when litigation is reasonably anticipated is industry standard and expected by the courts in many, if not all, jurisdictions. On the spoliation issue—spoliation allegations are possible if social media accounts are not properly and timely preserved. There was a 2013 decision from Virginia, Allied Concrete Co. v. Lester, where the lawyer advised his client to “clean up” his Facebook account, material unhelpful to the litigation was removed, and ultimately the court awarded large monetary penalties against the litigant and the lawyers for spoliation. Because many people haven’t become attuned with thinking evidence also includes social media, there is a risk it may be overlooked in the preservation process. That may give rise to spoliation claims later.
ES: Spoliation is a huge concern and yes, if previous posts are deleted I think the lawyers and clients risk monetary, issue and possibly terminating sanctions. Litigators can only advise the client of the duty to preserve evidence and hope that it sinks in. Similarly, the litigator has to tell the client to stay off of social media or tightly restrict it. Easier said than done in today’s world. Human beings are really addicted to social media and sharing every little thought or mundane daily experience. I think this is especially important for contingency lawyers because often clients don’t have skin in the game and are not as careful. One misstep on social media and a lawyer could lose a case he or she has been working on for years and fronting huge costs. That is a risky place to be as a plaintiff’s lawyer. I suppose a creative way to control a client’s social media usage is to restrict it in the retention agreement. That might be one way to get a client to take it very seriously. At the end of the day, a bad client is going to be a bad client and unfortunately the ax falls on the lawyers head many times.
NG: How should litigators protect their own images and firms while still enjoying social media use?
SE: It is useful for the firm to have a social media policy to guide employees on what is appropriate to put on social media. Many lawyers use social media as a tool to share their professional accomplishments—publications, media, awards, etc., but to discuss an active matter? I wouldn’t advise doing so in any detail or in any way that the comments could be attributed to the matter.
ES: Common sense goes a long way. Don’t say anything on social media too off color or personal. I would say keep it topical but find daylight to inject a little personality into tweets and blog posts.
NG: Are there ethical or bar rules preventing a litigator from tweeting about their own case before, during, or after trial?
SE: I would not share information of any detail about an active matter on a social media platform.
ES: Not that I am aware of but I see no benefit to it. I would definitely not tweet before or during trial. If you get a good result at trial, you’re just setting up the other side for an appeal or motion to throw out the verdict. Pop the champagne and tweet all you want after trial.
NG: Are you aware of new trends in causes of action arising around social media sites?
SE: Social media itself is constantly trending. New platforms are introduced constantly and collecting from those platforms is an interesting and evolving landscape. When you consider platforms like Snapchat that are designed for the messages to quickly disappear—will courts treat those chats differently on a privacy level? Will they be harder to preserve and collect? Similar issues are found with social media apps that are designed to be anonymous, such as Yik Yak. Identifying and authenticating evidence from anonymous sites will undoubtedly be challenging. And, of course, a big trend this year was the Internet of Things (IoT). How IoT will interface with social media—for example, with apps like Waze where social media users share data location to track traffic or the medical and health data that your Fitbit collects—are trending; how that data will be collected and used in litigation is an issue on the near horizon.
ES: Yes, too many to name. For starters, privacy class actions relating to data breaches and marketing practices. Also, claims under impersonation statutes like California Penal Code section 502. We also have claims arising under various federal statutes like the Stored Communications Act, Electronic Privacy Act and Computer Fraud and Abuse Act. These statutes all relate to unauthorized access of social media accounts and communications. It all comes back to the fact that lives are lived online. Our social interaction has moved online. Dating happens online. We do our errands online including banking and grocery shopping. As a result, old statutes are being repurposed for the digital age and new statutes are passed by legislatures every year to address new grievances.
NG: Are defamation cases on the rise? Are plaintiffs’ lawyers using novel theories to win such case? Is it becoming easier for businesses to combat derogatory postings, particularly those on rating sites?
ES: I do a lot of defamation cases and the area has surged in the last 10 years. However, there is a check on defamation claims in many states known as anti-SLAPP statutes. California has one of the most extensive. It is very, very tough to win defamation cases in California. For that reason, the various anti-SLAPP statutes have created and encouraged defamation forum shopping. It is no easier or tougher for a business to combat derogatory postings. What companies need to understand is that under federal law, the website hosting consumer ratings is generally not liable for defamatory reviews. Companies need to sue the person who actually posted the review. Many times such postings are anonymous. In that case, companies need to be proactive and quickly file their case so that the digital evidence used to unmask the poster will not disappear. Forget about the one year statute of limitations in California for defamation, what really matters is that most Internet Service Providers keep server log records for six months at most. So, a business has a functional six month statute of limitations. I tell people defamation cases are on the rise but it is not an easy or inexpensive road.
NG: Have you heard of or read about any bizarre or interesting use of social media in connection with a trial?
SE: There have been a handful of cases where jurors were tweeting or posting to Facebook about the trial while they were sitting—and courts are reacting to that. It’s more and more common for judges to instruct jurors not to use social media to discuss the case and even in some instances to avoid social media or even the internet altogether.
ES: Yes, the new secret weapon in jury selection is to use the internet to find out their political affiliations.
NG: Do you advise clients to create and maintain a social media monitoring plan to either pre-empt or prepare for potential litigation? What are the best practices for social media monitoring?
ES: It is a client-by-client decision and depends on many factors. The best practice is routine and discipline. If you are going to implement such a program, make sure it is consistently implemented. Otherwise, you’ll miss crucial evidence or harmful activity.