We get it. Social media is not something most lawyers think about every day. But social media can make or break almost any type of litigation or matter your clients may have. Family law, employment disputes, criminal matters, and a whole range of intellectual property and business disputes now turn on social media and website evidence.
With the growing body of case law in this area, all of the ways lawyers can use social media in litigation is becoming clear, as well as all of the ways it can get you or your clients into trouble – even thrown in the slammer.
Here are nine lessons about social media in the law that some lawyers and their clients have learned the hard way:
1. When You Take a Case, Get Your Clients off Social Media
In a recent dispute in Florida, a state appeals court last week threw out an $80,000 settlement between a Miami prep school and a former headmaster. The reason? The former headmaster’s daughter boasted about it to her friends on Facebook.
“Mama and Papa Snay won the case against Gulliver,” she wrote. “Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” The daughter’s excitement at her father’s big legal win is understandable, although her sense of tact, decorum, and common sense are terrible. According to news reports, the Third District Court of Appeals has overturned the $80,000 judgment to Dana Snay’s father for violating the terms of a confidentiality agreement that was part of the judgment.
New rule – when you take a case, make sure your clients will not jeopardize your case by doing something ill-considered online.
2. Don’t Let Them Try to Edit Existing Social Media Pages
In Gatto v. United Air Lines, Inc., (D.N.J. Mar. 25, 2013) the court sanctioned a plaintiff for deactivating and deleting his Facebook account. Why was this man still using his Facebook account? The parties had already established it was going to be an important piece of evidence in this matter. The account should have been frozen and a forensic copy of the site should have been downloaded and preserved. If the parties had simply made a forensically complete copy of the page, as is standard practice with any other type of eDiscovery, there would have been no chance a misguided plaintiff could have upended the case this way.
Let’s let the judge in the Gatto case spell out your duty to preserve social media. “Litigants in federal court have a duty to preserve relevant evidence that they know, or reasonably should know, will likely be requested in reasonably foreseeable litigation, and the Court may impose sanctions on an offending party that has breached this duty.”
In other words—preserve social media for litigation. If it gets deleted, you get sanctioned. ’nuff said.
3. Don’t Let Your Clients Troll the Police.
Posting wild and irresponsible comments online- or trolling- is common activity. However, your clients may not be aware that their speech takes on a heightened level of scrutiny once the law is involved.
So while it might seem like harmless fun to make idle threats online most of the time. Nicholas Emond, aka “Sin Demon” started commenting on his own wanted poster on Facebook. Emond was wanted for a relatively minor infraction, “violations of conditions of supervised release.” However, once he began to post increasingly angry comments on his wanted poster (published on a local TV station’s Facebook page), his case suddenly got a lot of local attention. Acting on tips from the public, police arrested Emond in Somersworth, N.H.
In another case involving public comments on a Facebook, Matthew Oliver commented on his Pasco Sheriff’s Office wanted photo on Facebook:
“You guys are going to pay for… believing a crackhead and… slandering my name,” Oliver wrote on the sheriff’s office Facebook page. “Pasco County has nothing but fools investigating crimes for them that’s why these mix up[s] happen.”
As can be expected, Oliver was arrested and now faces even more charges. Thanks to his online activity, he doesn’t have to worry that the police are taking the word of an unreliable “crackhead.” They have his own words to use against him.
4. Be Careful About Friending Judges, Colleagues, or Opposing Counsel
We understand that it is important to establish a collegial and friendly working relationship with judges and other lawyers. We even understand that you might want to brag about the round of golf you just played with the chief judge in your jurisdiction. But in one recent ruling, the court found that Tweets from one prosecutor during trial of a child rapist could have jeopardized the trial. The court did not reverse the conviction, but noted the Tweeting was a cause for concern. And a judge in Michigan has ordered a Dearborn attorney to remove all references to a recent ruling from a Facebook page he created. The attorney was even ordered to forward the names and contact information to the court of anyone who commented on the case or “Liked” a post.
In addition, the ABA has now published an ethics opinion, warning that judges who use social networking have to follow the ABA Model Code of Judicial Conduct. (See Formal Opinion 462 for details). If your case is going before a particular judge, be aware of the communications you may have with them. Are you Facebook friends with the judge or opposing counsel? Are you Tweeting them? Those communications are likely discoverable and potentially prejudicial.
5. Don’t Drag Your Feet in Turning Over Social Media
Let’s let a federal judge explain why “inappropriate and obstreperous” and “contumacious behavior” is not acceptable when social media is involved. On second thought, let’s forget what the judge said and talk plain English. In EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., despite establishing that social media was discoverable for the case, the plaintiffs failed to produce the evidence for several months. The defendant submitted social media discovery requests of this content, but the EEOC has, “made this endeavor more time consuming, laborious, and adversarial than it should have been.”
The end result? An adverse inference which upended the EEOC’s case.
6. Don’t Go on a Social Media Fishing Expedition
There have been a number of commonly cited cases in which courts have ruled social media is discoverable in order to illustrate an individual’s mental state at a particular time. However, some legal teams seem to think that means they can just scoop up all Tweets, Facebook posts, likes, dislikes, Pinterest pins, and anything else someone puts online. Courts have rightly said this is not a fair strategy.
In Kregg v. Maldonado, the court wrote that a party must show, “at least some of the discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on her claim.” Lawyers who make broad requests for social media or don’t understand the finer points of social media discovery are often shut out entirely- no social media for you.
7. Beware- Social Media Can give Away Your Secrets
As reported in Computerworld, social media can give away your secrets. Are you visiting a particular client or well-known expert witness who could be the key to your case? If so, your social media might broadcast this fact to the world (and opposing counsel.)
All social media sites keep an astonishing amount of information about users; mobile apps are especially prone to give it away, in the form of your location, activity, or other information. This, of course, is a boon to requesting parties in a discovery dispute. But if you’re trying to keep your trial strategy under wraps, don’t let your smart phone or your love of Foursquare give you away.
8. Do Not Fake Posts
In family law and other emotionally charged battles, overzealous clients are very likely to break boundaries in order to get the dirt on their opponents. This can often include clumsy attempts at entrapment. Angela Voelkert created a fake Facebook profile, “Jessica,” and friended her ex-husband in order to get some dirt on him in their child custody battle. Her ex, David, posted a chat message to “Jessica” that he was going to track his ex-wife with a GPS device and kill her. The FBI arrested him for these statements, until he showed an affidavit stating that he knew who was behind the profile and that he had set out to trap her:
“the lies that I am placing in this chat [are]… proof what my ex-wife has been doing, so this will be part of such. In no way do I have plans to leave with my children or do any harm to Angela Dawn Voelkert or anyone else.” -David E. Voelkert
Now Angela Voelkert is the one with some serious explaining to do.
9. Oops, I Forget to Have a Social Media Policy
Employees are going to tweet. That is true of lawyers as well. As the New York Times reported, the National Labor Review Board and other agencies and courts considering workers’ rights have ruled that workers do have a right to use social media. But without proper controls or directives, employees are likely to tweet something that is embarrassing or should be kept secret. It is up to you to have a policy that outlines your firm’s social media policy, enforce it, and have the technology in place to manage your organization’s social media usage.
This Social Media Thing Is Pretty Important
Representing clients in today’s data rich and complex world is difficult enough. There’s no reason to let social media complicate things further. As we’ve demonstrated above, ignoring or taking a lax attitude towards social media is unacceptable.
In ruling after ruling, courts are telling lawyers that social media can be central to their matter. Posts on social media are within the scope of “electronically stored information” as that term is used in Rule 34 of the Federal Rules of Civil Procedure. If parties can demonstrate that public social media posts even hint that there is discoverable information to be found, then the court will likely allow broad social media discovery of all postings- public and private.
Nextpoint has been archiving social media for litigation since 2010. Social media is now established as an important and often vital part of the public record in most types of litigation, regulatory review, and arbitration. Lawyers who ignore this evidence or neglect to inform their clients of the inherent risks are likely going to learn some hard lessons.
ABOUT THE AUTHOR:
Jason Krause is the marketing coordinator for Nextpoint. Prior to joining Nextpoint’s marketing department, Jason was a writer and reporter for the American Bar Association’s ABA Journal, where he was one of the first to recognize and report on the impact exploding volumes of evidence is having on litigation. He has also covered the industry as a freelance writer and independent marketing consultant for publications such as Law Technology News. Connect with Jason on Google Plus.