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Ethics, Social Media, and YOU

Presented to ACC, Colorado Chapter

December 4, 2013

Ed Stewart, Wheeler Trigg O’Donnell LLP

Craig May, Wheeler Trigg O’Donnell LLP

Jyll Lottner, Vail Resorts, Inc.

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Social Media – Not Just For Teenagers Anymore

• Jury Selection

• Discovery

• Employment

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Interactions With Parties, Jurors, And Clients In The Facebook Age

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Rule 1.1, Comment 6 instructs lawyers to “keep abreast of changes in the law and its practice . . . .”

Rule. 1.1, Comment 5: competent handling of a matter includes…use of methods and procedures meeting the standards of competent practitioners

Rule 1.3, Comment 1 requires acting with “zeal and advocacy” on client's behalf

Do I Really Have To Know This?

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Or . . .VOIR “GOOGLE”

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Research – An Option? A Right? A Duty?

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Option?

THE COURT: Are you Googling these people?

COUNSEL: Your Honor, there's no code or law that says I'm not allowed to do that. I — any courtroom —

THE COURT: Is that what you're doing?

COUNSEL: I'm getting information on jurors — we've done it all the time, everyone does it . . . . There's no rule . . . .

THE COURT: No, no, here is the rule. The rule is it's my courtroom and I control it. So, therefore, my ruling is: close the laptop for the jury selection process . . . I can't control what goes on outside of this courtroom, but I can control what goes on inside the courtroom.

Right?

“A party must use reasonable efforts to examine the litigation history . . . of those jurors selected but not empanelled . . . To facilitate this search, the trial courts are directed to ensure the parties have opportunity to make a timely search prior to the jury being empaneled . . .” Johnson v. McCullough MD (Supreme Court of Missouri)

Duty That Can Be Waived?

“We note that . . . the trial court suggested that the attorneys run jurors’ litigation histories electronically before the jury commenced deliberation . . . Given this set of facts, we cannot say the trial court abused its discretion in denying plaintiff’s motion for a new trial.” Tricam Industries v. Coba, (Florida Court of Appeals, 2012)

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To Google or Not to Google During Voir Dire

Pros:

If court expressly allows, Rule 1.1 may impose duty to do so

May expose biases, grounds for cause, evasive/untruthful voir dire responses

More information almost never harmful 

Cons:

Time constraints

Distraction from effective “traditional” voir dire

False positives

Risks offending jurors if confronted with their social media postings 

Either way ASK (Sluss v. Commonwealth of Kentucky, 381 S.W.3d 215 (2012))

Where Should You Check?

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Investigating Jurors – Ethical Challenges

Rule 3.5(d) prohibits ex parte communications with jurors during the course of proceedings

 Is social media research a “communication”?

Obtaining generally accessible information usually is not

“Friend” request by attorney or staff—or one initiated by juror—not permitted

Search which “itself imparts to juror knowledge that he or she is being investigated” may be a “communication”

E.g. New York City Bar Assoc. Comm. on Professional Ethics, Opinion 2012-2

Know Your Technology!

“[I]t is an attorney’s duty to research and understand the properties of the service or website she wishes to use for jury research in order to avoid inadvertent communications.” (New York City Bar Assoc. Comm. on Professional Ethics, Opinion 2012-2)

Facebook = OK to access public pages, but not to gain access to private pages or “Friend”

Twitter = OK to read posts, but not to “follow”

LinkedIn = OK to browse anonymously without leaving electronic footprint

NOTE: You MUST change your privacy setting to “completely anonymous” in order to browse anonymously

Monitor During Trial?

May reveal information withheld in voir dire that could lead to mistrial (e.g. are your jurors “friends” with Plaintiff?)

May reveal juror misconduct (e.g. tweeting about case, conducting research, revealing juror deliberations)

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It does in South Carolina

Branham case

9 of 12 jurors discovered to be former clients of plaintiffs’ counsel

It happens other places too!

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Does This Really Happen?

Juror Conduct During Trial

“This trial is boring! I don’t know which way to go, so I’m holding a poll. Should I vote guilty or innocent?”

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State v. Dellinger(West Virginia Supreme Court,2010)

Juror to Defendant on Myspace during trial:

“You might not understand why you are hurting right now but when you look back on it, it will make perfect sense. I know it is hard but just remember God is perfect and has the most perfect plan for your life. Talk soon.”

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Duty to Report Juror Misconduct?

Old Rule (Code of Professional Responsibility)

Lawyer had a duty to “ . . . reveal promptly to the court improper conduct by a venireman or a juror, or by another toward a venireman or a juror or a member of his family, of which the lawyer has knowledge.” DR7-108

New Rule (Rules of Professional Conduct)

No express duty

But interests underlying Rules 3.3-3.5 suggest duty to disclose, regardless

Social Media and Witnesses

Communicating with Represented Persons

Cannot communicate about subject matter of representation with person represented by counsel (Rule 4.2)

Applies even if contact initiated by the party

Advice – no “friending” witnesses who are represented

No using an employee to friend the witness for you

Avoid "pretexting"

Rule 8.4 expressly prohibits lawyers violating RPC through acts of another

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Communicating with Unrepresented Persons

Risky to communicate through social media

No Pretexting

Rule 4.3 prohibits lawyers, when dealing with unrepresented persons, from implying that he/she is disinterested

No False Statements

Rule 4.1

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Social Media and Discovery Issues

Investigating Opposing Parties and Third Party Witnesses

Social media can be rich source of discovery

BUT - investigation must be done ethically

Investigate Your Client

Research your client to gain important information for litigation

Before filing suit (Rule 3.1, Meritorious Claims and Defenses)

During suit (with or without discovery request)

Before company witness depositions (as part of preparation)

Duty to Preserve Evidence

Rule 3.4 prohibits altering or destroying evidence

DO NOT instruct client to remove harmful information from social media site during or in anticipation of litigation

Can you advise the client to change privacy settings?

What About Deactivating a Facebook Site?

Taking down a site may result in the deletion of the account, and all of its content

Example – plaintiff deactivated his Facebook site during the case, resulting in its deletion spoliation sanctions

Can you adequately preserve all content of the Facebook account before deactivation?

Know the technology!

Advising Client on Social Media

Advising client to use highest possible privacy/security settings?

Advise client to “take down” material from social media sites, while preserving relevant material for litigation?

NOTE: client can be asked about any changes to social media

Advise client to publish truthful, favorable information

Obtaining Social Media in Discovery

Competing tests for compelling production

Restrictive Test - Requires showing that:

Public pages contain material contradicting claims; and

Request is narrowly tailored to seek only relevant information

Tapp v. New York State Urban Dev. Corp., 102 A.D.3d 620 (NY 2013); Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Michigan 2012)

Example - Picture of slip-and-fall plaintiff holding a 2-5 lb. dog, attending a birthday party and pushing a shopping cart not inconsistent with injury claims

Obtaining Social Media in Discovery

Permissive Test (FRCP)

Any relevant, nonprivileged information is discoverable

If in doubt, rules favor permissive discovery

Reduced expectation of privacy where circle of “friends” is large

E.g. Higgins v. Koch Development Corp., 2013 Westlaw 3366278 (S.D. Indiana 2013); Reid v. Ingerman Smith LLP, 2012 Westlaw 6720752 (E.D. New York 2012)

 Like a written diary, private Facebook posts are potentially relevant to a wide range of issues, such as emotional distress, etc..

Social Media in the Workplace

Presented by Jyll Lottner, December 2013

• Expression of political opinions

• Legal off-duty activities or “lifestyle discrimination” (e.g., California, Colorado,

Connecticut, New York, North Dakota), which ban discrimination based on legal off-duty conduct

• Wrongful termination in violation of public policy (arrests, convictions, bankruptcy, workers’ comp.

history)

• Whistleblowing (SOX, Dodd-Frank, Wage & Hour)

Legal Constraints on Employee Discipline

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• National Labor Relations Act - Section 7 of the NLRA guarantees employees the right to

“engage in other concerted activities for purpose of collective bargaining or other

mutual aid or protection”

• Applies to both union and non-union employees

Legal Constraints on Employee Discipline

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2+ employees acting to address a collective concern about terms and conditions of employment is

considered protected concerted activity. 1 employee acting on behalf of others, initiating,

inducing or preparing for group action, or who has discussed the matter with co-workers, can be

engaged in protected concerted activity. Comments made solely by an employee related to

employment but do not arise out of, or call for activity by other employees, are not protected

concerted activity.

Legal Constraints on Employee Discipline

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Actions via social media taken for the purpose of improving working conditions such as:

PayHours

Workplace safetyWorkloadBenefits

Terms of employment (i.e. supervisor conduct, work satisfaction or dissatisfaction)

Could be deemed “protected, concerted activity”

Protected Activity

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Real life examples:

Employee at a BMW dealership fired for Facebook posts ridiculing the dealership for serving hot dogs during a sales

event rather than more upscale food…concerted and protected because arose from discussions among several

employees and hot dog cart could have “turned off” customers thereby impacting the employee’s commissions

Employees at a clothing store fired for Facebook post criticizing and complaining about supervisor’s reaction to their

complaints about working late…concerted and protected because it was a continuation of earlier discussions about employment conditions and was for the mutual aid and

protection of other employees

Protected Activity

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The following actions via social media are likely not concerted, protected activity:

posting secret, confidential or attorney-client privileged information (protects company’s legitimate interests)

discussing information relating to safety of company’s product (not related to safety of the workplace)

harassing, bullying, discriminating or retaliatingposting anything in the name of the company or in a manner that could be reasonably attributed to, or to be on behalf of,

companyposting threats of violence or similar inappropriate or unlawful

conduct

Unprotected Activity

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Protected Activity?

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Craig MayDecember 1

To whom this may concern:You know who you are – you cried and cried and cried like a little b**ch and got your f***ing way. He’s gone. Great job, you’re the f***ing man! Pat yourself on the back

you sissy. I hope things were really that bad for you, you deserve it, you loser. Instead of crying like a little b**ch, why don’t you try confronting the person who you feel has

done you wrong? Why don’t you act like a real man and own up to what you claim happened. Instead, you hid behind mommy and took the chicken sh*t way! You

shouldn't be allowed to hide behind mommy, no one should ever. EVER. Stand up for yourself you f***ing crybaby! F**k you!!

Like – Comment – Share

19 people liked this.

Edward Stewart – I know; it’s bullsh*t! No way this should have gone down without some face to face. What a joke!

December 1

Jyll Lottner – F**k you!! No more hiding allowed!!! Change it – man up!December 1

Protected Activity?

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What to Do?

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• Do NOT assume that the content of a tweet, post on Facebook, etc. allows the employer to take action against the employee

• Look at whether other co-workers are involved in the discussion; whether the discussion directly arises from an earlier discussion; or whether the post calls co-workers to action

• Look at the subject matter of the tweet, post, etc. and if it could be considered concerted and protected activity

What to Do?

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• Look at whether another employees’ rights have been violated

• Look at the tweet, post, etc. for threats of violence or similar inappropriate or unlawful conduct

• Consider talking to the employee to work out his/her concerns through internal procedures

• Consider whether to conduct an investigation