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Social Networking Websites: The Emerging Litigation Tool

Strategies for Using Facebook, Google, and other Online Sources in Litigation Practice

presents

Today's panel features:Carole Levitt, President, Internet For Lawyers, Rio Rancho, N.M.

Daniel L. Brown, Partner, Sheppard Mullin, New YorkSteven C. Bennett, Partner, Jones Day, New York

Wednesday, November 11, 2009

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Social Networking Websites: The Emerging Litigation Tool

Trends in use of social networking in litigation

© Carole Levitt, Esq., Internet For Lawyers, Inc. 2009clevitt@netforlawyers.com / 310/559-2247

SEMINAR IS BASED ON CYBERSLEUTH BOOK, ABA BOOK

CAROLE LEVITT: AUTHOR/SEMINAR SPEAKERCAROLE LEVITT: AUTHOR/SEMINAR SPEAKER

“SOCIAL NETWORKING SITES AREN’T JUST FOR SOCIAL NETWORKING.” Geoffrey Vance, Partner McDermott Will & Geoffrey Vance, Partner McDermott Will &

Emery Emery ---- “I make it a practice to use as many sources as I can “I make it a practice to use as many sources as I can come up with to find information about the other side. We used come up with to find information about the other side. We used to run LexisNexis; we still do that. We always look at cases, anto run LexisNexis; we still do that. We always look at cases, and d

now we use the Internet now we use the Internet —— Google, and social networking Google, and social networking sites.”sites.”-- Vance uses these soc network sites to gather facts Vance uses these soc network sites to gather facts

about the opposing sideabout the opposing side-- e.g., a plaintiff claimed Vance’s client e.g., a plaintiff claimed Vance’s client drove him out of business. opposing counsel painted plaintiff drove him out of business. opposing counsel painted plaintiff as poor, loving family man. Vance found on MySpace that the as poor, loving family man. Vance found on MySpace that the

plaintiff collects antique Jaguar cars/president of a Jaguar cluplaintiff collects antique Jaguar cars/president of a Jaguar club. b. Vance saw compromising photos showing plaintiff is not the Vance saw compromising photos showing plaintiff is not the

family man he claimed to be. The plaintiff also talked about thefamily man he claimed to be. The plaintiff also talked about thecase and the judge on the site.case and the judge on the site.

“SOCIAL NETWORKING SITES

AREN’T JUST FOR SOCIAL

NETWORKING.”

STATISTICS & TRENDS:STATISTICS & TRENDS:LexisNexis' Networks for

Counsel Survey of 1,474 lawyers (2009)

Over 70 % have a social networking profile

Up nearly 25 % in 1 year 30 percent growth aged 46+

(www.leadernetworks.com)

Internet For Lawyers’ survey of 32 law firms

(October 2009)

62% have a social networking profile

46% (of the 62%) look at profiles of others & of those 46% 42% review opposing

counsels‘ 12% review judge's 58% review potential client's 38% review current client's 17% review former client's 38% review potential hire's 4% review potential juror’s

STATISTICS & TRENDSSTATISTICS & TRENDS October 2009, 46% of

American adults who are online are ALSO using social networking sites (the Pew Institute; http://pewresearch.org/pubs/1385/who-uses-twitter-tweets).

Facebook: 300 million members (as of October 2009) median age of users: 33 &

fastest growth 35 years+

MySpace: 260 million members median age of users: 26

LinkedIn: 30 million members (as of December 10, 2008) average age of users: 39-41

EVEN PAY SITES LIKE INTELIUS ARE EVEN PAY SITES LIKE INTELIUS ARE OFFERING “SOCIAL NET SEARCHES”OFFERING “SOCIAL NET SEARCHES”----

PROMISES NAME, ADDRESS, PHONE, EMAIL, SCREEN NAME, PROFILE URLS.PROMISES NAME, ADDRESS, PHONE, EMAIL, SCREEN NAME, PROFILE URLS. on on 9/30/09 Intelius found one result: my linkedin profile, but I fo9/30/09 Intelius found one result: my linkedin profile, but I found that freeund that free--by just by just

googlinggoogling. .

INTELIUS SOCIAL NET SEARCHINTELIUS SOCIAL NET SEARCH

A jury found appellant Clark guilty of murdering a two-year-old left in his care. ON APPEAL: should the trial court have permitted the State to offer into evidence Clark’s entry from the social networking

website MySpace? YES, INDIANA SUP CT HELD: ? YES, INDIANA SUP CT HELD: trial court properly admitted evidence of Clark’s MySpace page B/C HE INTRODUCTED HIS OWN CHARACTER INTO EV & Clark’s posting contained only statements about himself and in reference to himself. The State is right:HIS SN

PROFILE= solely evidence of his own statements, not of prior criminal acts. It was Clark’s words and not his deeds that were at issue.

EVIDENCE FROM MURDER DEFENDANT’S SOCIAL NETWORKING PROFILE TO SHOW CHARACTER

http://www.in.gov/judiciary/opinions/pdf/10150901rts.pdf

EVIDENCE FROM MURDER DEFENDANT’S SOCIAL NETWORKING PROFILE TO SHOW CHARACTER

http://www.in.gov/judiciary/opinions/pdf/10150901rts.pdf

Justice Brown said, “Leduc can't hide behind self-set privacy controls on a website that's all about telling others about one's life.”

Leduc v. Roman, 06-CV-3054666PD3,

JUDGE COMPELS PRODUCTION OF PRIVATE SOCIAL NETWORKING PROFILE IN CANADIAN SUPERIOR COURT

PERSONAL INJURY CASE http://tinyurl.com/yfokbbz

JUDGE COMPELS PRODUCTION OF PRIVATE SOCIAL NETWORKING PROFILE IN CANADIAN SUPERIOR COURT

PERSONAL INJURY CASE http://tinyurl.com/yfokbbz

JUDGE COMPELS TEENS TO DIVULGE JUDGE COMPELS TEENS TO DIVULGE PRIVATE SOCIAL NETWORKING PROFILES PRIVATE SOCIAL NETWORKING PROFILES

IN NEW JERSEY CIVIL CASESIN NEW JERSEY CIVIL CASES

Beye v. Horizon, 06-Civ.-5337 and Foley v. Horizon, 06-Civ.-6219

U.S. Magistrate ordered plaintiffs to turn over private MySpace and Facebook profiles.

Plaintiffs claimed they didn’t have any.

How can you verify that?

AFTER VIEWING “PUBLICLY AVAILABLE” INFORMATION – PROVIDED BY HUGH ON A

GOVERNMENT ELECTION SITE, REPORTER DECIDED TO RESEARCH HUGH’S FACEBOOK PROFILE…

HAD A RESPECTABLE CHANCE OF ELECTION AS STATE REPRESENTATIVE IN HAD A RESPECTABLE CHANCE OF ELECTION AS STATE REPRESENTATIVE IN NOV. 2006…NOV. 2006…

AFTER VIEWING “PUBLICLY AVAILABLE” INFORMATION – PROVIDED BY HUGH ON A GOVERNMENT ELECTION SITE, REPORTER DECIDED

TO RESEARCH HUGH’S FACEBOOK PROFILE…

AFTER VIEWING “PUBLICLY AVAILABLE” INFORMATION – PROVIDED BY HUGH ON A GOVERNMENT ELECTION SITE, REPORTER DECIDED

TO RESEARCH HUGH’S FACEBOOK PROFILE…

HOW TO USE FACEBOOK HOW TO USE FACEBOOK http://www.facebook.com

FACEBOOK (http://www.facebook.com)

FACEBOOK (http://www.facebook.com)

facebookfacebook.com .com –– hughhugh’’ss pixpixKMDSHD,MCKMC

KMK

SOCIAL NETWORKING SITES “PUBLICLY AVAILABLE” INFORMATION – PHOTOS VOLUNTARILY

PROVIDED BY HUGH FOSKETT IN HIS FACEBOOK PROFILE

SOCIAL NETWORKING SITES “PUBLICLY AVAILABLE” INFORMATION – PHOTOS VOLUNTARILY

PROVIDED BY HUGH FOSKETT IN HIS FACEBOOK PROFILE

FACEBOOK.COM ASKS YOU TO SIGN UP. AVOID SIGNING UP, STILL FACEBOOK.COM ASKS YOU TO SIGN UP. AVOID SIGNING UP, STILL SEARCH.SEARCH.BUT TO SEE FULL PROFILES OF OTHERS MUST Create a BUT TO SEE FULL PROFILES OF OTHERS MUST Create a

Profile (Automatically Assigned to Network BASED ON EMAIL ADDRESProfile (Automatically Assigned to Network BASED ON EMAIL ADDRESS) S) AND BE IN THEIR Specific Network (unless they opened their profiAND BE IN THEIR Specific Network (unless they opened their profile to le to everyone) Or CAN everyone) Or CAN ““PokePoke”” To Become A To Become A ““FriendFriend”” TO SEE SOMEONETO SEE SOMEONE’’S S

PROFILE.PROFILE.

SEARCH BY NAME

FACEBOOK-TO AVOID SIGNING UP, USE THIS URL: http://www.facebook.com/srch.php

FACEBOOK-TO AVOID SIGNING UP, USE THIS URL: http://www.facebook.com/srch.php

FACEBOOK- We are not logged into Facebook -- ONE SEARCH RESULT FOR HUGH FOSKETT——

DOESN’T SHOW US WHAT NETWORK HE IS DOESN’T SHOW US WHAT NETWORK HE IS IN. CIN. CAN VIEW NAMES/PHOTOS OF HUGH’S FRIENDS SO YOU MIGHT BE ABLE TO SEE

CONNECTIONS BETWEEN PEOPLE. CAN CONTACT HUGH’S FRIENDS IN THE REAL WORLD.

FACEBOOK (We are not logged into Facebook)FACEBOOK (We are not logged into Facebook)

NAMES & PHOTOS OF HUGH’S

FRIENDS ARE DISPLAYED

IF logged into Facebook CAN SEARCH BY MORE CRITERIA: NAME, EMAIL, SCHOOL, COMPANY, ETC. AND

FACEBOOK (We ARE logged into Facebook)FACEBOOK (We ARE logged into Facebook)

SEARCH BY NAME OR

EMAIL

SEARCH BY SCHOOL NAME (AND

PERSON’S NAME)

SEARCH BY COMPANY (AND

PERSON’S NAME)

NOW SHOWS NAME OF HUGH’S NETWORK AND WE CAN SEE ALL HIS 625 FRIENDS.

FACEBOOK (We ARE logged into Facebook)FACEBOOK (We ARE logged into Facebook)

SHOWS NAME OF HUGH’S

NETWORK: WASHINGTON ‘08

YOU MUST BE FRIENDS TO SEE HUGH’S FULL PROFILE

SEE ALL 625 FRIENDS

Facebook. PHOTO-M ADDED. %WHAT ARE YOU DOING

RIGHT NOW? I NEVER TELL. (LAWYER SERVED SOMEONE

AFTER LEARNING WHERE PERSON WORKED/WHAT TIME

SHE GOT THERE).. %I GOT TAGGED.

CYBERSLEUTHSFACEBOOK PROFILEFACEBOOK PROFILE

I GOT “TAGGED”

WHAT ARE YOU DOING RIGHT NOW?

Facebook: STATUS UPDATES: IF MY FRIENDS POST THEIR STATUS, IT GETS

POSTED TO MY PROFILE. RANDI IS CRAZED W/ WORK; SARAH TOOK ½ DAY

OFF… NEWS FEEDNEWS FEED –– ACTIVITIES OR INFO ACTIVITIES OR INFO POSTED IN YOUR FRIENDS’ PROFILES.POSTED IN YOUR FRIENDS’ PROFILES.

CYBERSLEUTHSFacebook: REAL TIME TRACKING OF PEOPLEFacebook: REAL TIME TRACKING OF PEOPLE

STATUS UPDATES (FROM FACEBOOK

FRIENDS): WHAT ARE YOU DOING RIGHT

NOW?

Facebook: SET PRIVACY-1.BASIC INFO-WHO CAN SEE YOURPHOTOS, PERSONAL INFO, TAGGED PHOTOS, VIDEOS, FRIENDS, WALL POSTS, EDUCATION, WORK) & 2. CONTACT INFO (E-MAIL, PH #, WEBSITE): 1. OPEN TO TO EVERYONE, 2. RESTRICT TO MY NETWORK &EVERYONE, 2. RESTRICT TO MY NETWORK & MY FRIENDS, OR 3. FRIENDS OF FRIENDS, OR

4. ONLY FRIENDS, 5. CUSTOMIZE –TO BLOCK A NAME OR EMAIL ADDRESS

CYBERSLEUTHS(108) Facebook: SET PRIVACY(108) Facebook: SET PRIVACY

SET PRIVACY. CLICK ON “BASIC” OR “CONTACT INFO”

MYSPACE.COM: Launched in January 2004Launched in January 2004. . JULY 09: 260 Million profiles & 130 million active users monthlyJULY 09: 260 Million profiles & 130 million active users monthly. 12/08 Pew . 12/08 Pew ReaserchReaserch: 50% of adult Soc Net users have : 50% of adult Soc Net users have

myspace profiles & median age 27. myspace profiles & median age 27. FROM DROPFROM DROP--DOWN MENU, DOWN MENU, CHOOSE “MYSPACE” TAB AND SEARCH ELIZABETH SARLEY. THIS ADDS “AND” BETWEEN WORDS. CAN ALSO USE QUOTATION

MARKS TO SEARCH A PHRASE, OR USE “OR” (“NOT” AND “MINUS” DIDN’T SEEM TO WORK).

MYSPACE.COM SEARCH ELIZABETH SARLEY MYSPACE.COM SEARCH ELIZABETH SARLEY

SEARCH: ELIZABETH SARLEY

CHOOSE “MYSPACE”

SEARCH

YOU WON’T GET A RESULT FOR ELIZABETH SARLEY B/C SHE DIDN’T

USE HER NAME ON PROFILE

NO MYSPACE.COM SEARCH RESULTS FOR ELIZABETH SARLEY

NO MYSPACE.COM SEARCH RESULTS FOR ELIZABETH SARLEY

MYSPACE.COM: CHOOSE “PEOPLE” TAB AND SEARCH

ELIZABETH SARLEY

MYSPACE.COM: SEARCH “PEOPLE”MYSPACE.COM: SEARCH “PEOPLE”

SEARCH: ELIZABETH SARLEY

CHOOSE “PEOPLE”SEARCH

SEARCH RESULTS FOR ELIZABETH SARLEY—EVEN THO HER LAST NAME IS NOT ON HER PROFILE, B/C SHE USED FULL NAME TO REGISTER WE GET A

SEARCH RESULT

MYSPACE.COM: SEARCH RESULTSMYSPACE.COM: SEARCH RESULTS

2 SEARCH RESULTS FOR: ELIZABETH

SARLEY

ELIZABETH’S LAST NAME (SARLEY) IS NOT ON THIS PAGE

&PROFILE IS SET TO PRIVATE.

MYSPACE.COM: SEARCH RESULTSMYSPACE.COM: SEARCH RESULTS

ELIZABETH’S LAST NAME (SARLEY) IS NOT ON THIS PAGE

MYSPACE.COM— EVEN IF NOT LOGGED IN, CAN ALSO SEARCH BY ALL NAME FIELDS (E.G. MAIDEN NAME, CURR NAME, OR DISPLAY NAME),

NAME, DISPLAY NAME, OR EMAIL ADDRESS.

MYSPACE.COM — FIND FRIENDS/SEARCH BY…MYSPACE.COM — FIND FRIENDS/SEARCH BY…

ALL NAME FIELDS, NAME, DISPLAY NAME,

OR EMAIL

MYSPACE.COM— SET PRIVACY: CAN BLOCK SPECIFIC USERS. you can even create friend categories to show parts of your

profile to specific friends. CHOICES: CHOICES: Anyone can view my comments page, ONLY FRIENDS…Choose who can view , ONLY FRIENDS…Choose who can view your friends pageyour friends page. Mutual friends are . Mutual friends are

always public. Choose who can view always public. Choose who can view your photos pageyour photos page… …

MYSPACE.COM: SET PRIVACYMYSPACE.COM: SET PRIVACY

LINKEDIN SCROLL DOWN TO LOCATE “LINKEDIN SCROLL DOWN TO LOCATE “SEARCH BY SOMEONE BY NAME” SEARCH BOXES. CAN SEARCH BY NAMESEARCH BY NAME--EVEN IF NOT SIGNED IN. EVEN IF NOT SIGNED IN. LinkedIn jumped from 3.6 LinkedIn jumped from 3.6 million unique monthly visitors in 3/08 to 7.7 million in 03/09,million unique monthly visitors in 3/08 to 7.7 million in 03/09,

according to according to ComScoreComScore. .

LINKEDIN LINKEDIN

“SEARCH FOR SOMEONE BY NAME”

SEARCH RESULTSSEARCH RESULTS--CAN ONLY CAN ONLY CLICK “VIEW FULL PROFILE” IF CLICK “VIEW FULL PROFILE” IF

YOU ARE LOGGED IN.YOU ARE LOGGED IN.

LINKEDIN: PARTIAL PROFILE LINKEDIN: PARTIAL PROFILE

MUST BE LOGGED IN TO VIEW FULL PROFILE

Select how much of your profile you want available to the public: none, full, basics (name, industry, location, number of recs). CAN EVEN SAY

“NONE” SO ONLY YOUR CONNECTIONS CAN VIEW.Select how much of your profile you want available to

the public.

LINKEDIN LINKEDIN

Once you’re connected to another Linkedin user you have access to their full profile and get updates about them AND THEY’LL HAVE ACCESS TO YOU—even if you choose “none” in the privacy settings-this means non-connections won’t find you . IF YOU SAY YOU DON’T KNOW PERSON WHO WANTS TO LINK TO

YOU-THEY’LL HAVE TO ENTER AN EMAIL ADDRESS W/ FUTURE INVITATION. (CAN VIEW FRIENDS OF FRIENDS IF THEY SHOW UP IN A SEARCH WHEN LOGGED IN)

LINKEDIN: Once you’re connected to a Linkedin user you have access to their full profile.

LINKEDIN: Once you’re connected to a Linkedin user you have access to their full profile.

CLICK: CONTACTS/NETWORK STATISTICS: OUT OF 40

MILL TOTAL, I HAVE 57 CONNECTIONS. THOSE 57 LINK ME TO 12,500+ PROFILES, WHICH I CAN VIEW. I AM 3

DEGREES AWAY FROM 1.2 MILLION P (WHOSE PROFILES I CAN’T SEE UNLESS 1 OF THE 1.2 MILL COMES UP IN A SEARCH, THEN I CAN SEE FULL PROFILES (AS MUCH

AS THEY’VE LEFT OPEN).

CLICKED: CONTACTS/NETWORK STATISTICS

LINKEDIN—CAROLE’S NETWORK STATISTICSLINKEDIN—CAROLE’S NETWORK STATISTICS

Carole’s Connections. NOTE-OVER 500 JMLS ALUM. Click dana berman. ADVANCED OPTIONS-CAN FILTER YOUR CONNECTIONS BY LOCATION OR INDUSTRY.

LINKEDIN--Carole’s Connections LINKEDIN--Carole’s Connections

CLICK: DANA BERMAN

% View my connections. SHOWS % View my connections. SHOWS OUR OUR SHARED CONNECTIONS:

MARK ROSCH

SHARED CONNECTIONS: MARK

ROSCH

LINKEDIN: LINKED TO ONE OF CAROLE’S CONNECTIONS LINKEDIN: LINKED TO ONE OF CAROLE’S CONNECTIONS

LINKEDIN—MORE OF C S PROFILE-SHOWS MY PAST

POSITIONS, EDUCA, RECOMMENDATION…

LINKEDIN—CAROLE’S FULL PROFILELINKEDIN—CAROLE’S FULL PROFILE

LINKEDIN—MORE OF C’S PROFILE-SHOWS MORE

DETAILS

LINKEDIN—CAROLE’S FULL PROFILELINKEDIN—CAROLE’S FULL PROFILE

LINKEDIN—E-MAIL RE: NETWORK UPDATES. SHOWS WHO MY NETWORK CONNECTIONS ARE NOW

CONNECTED TO/SHOWS A NEW GROUP AND A REC BY BEN SCHORR OF SHARON NELSON…TELLS ME

WHERE P ARE TRAVELING TO

LINKEDIN—NETWORK UPDATES E-MAILED TO CAROLE RE: HER CONNECTIONS’ ACTIVITIES

LINKEDIN—NETWORK UPDATES E-MAILED TO CAROLE RE: HER CONNECTIONS’ ACTIVITIES

LINKEDIN ADVANCED PEOPLE SEARCH by keywords, industry (law practice, legal servicses), user type (consultant),

location... Search “elec discovery” recognizes quotations marks

SEARCH: “electronic discovery”

LINKEDIN – ADVANCED PEOPLE SEARCH BY KEYWORDS, INDUSTRY…

LINKEDIN – ADVANCED PEOPLE SEARCH BY KEYWORDS, INDUSTRY…

LIST OF RESULTS: CLICK ON IAN BAGGER

LINKEDIN – RESULTS FOR ADVANCED SEARCH BY KEYWORDS, INDUSTRY…

LINKEDIN – RESULTS FOR ADVANCED SEARCH BY KEYWORDS, INDUSTRY…

I CAN SEE IAN’S FULL PROFILE B/C I AM LOGGED IN AND MY CONNECTIONS (ALEX) HAVE A CONNECTION TO 1 OF IAN’S CONNECTIONS. I CAN EMAIL HIM THRU LINKEDIN’S “INMAIL”—(IT’S ONLY FREE B/C HE HAS A PREMIUM ACCT AND ALLOWS SENDERS

TO EMAIL HIM-OTHERWISE MUST HAVE A PREMIUM ACCT TO SEND INMAILS) OR ADD IAN TO MY NETWORK.

LINKEDIN – IAN’S FULL PROFILELINKEDIN – IAN’S FULL PROFILE

SEND INMAIL, GET

INTRODUCED, ADD TO

NETWORK

HOW I AM CONNECTED TO

IAN

© Sheppard, Mullin, Richter & Hampton LLP 2009

Social Networking Websites: An Emerging Litigation Tool

Pre-trial Use of Social Networking

November 11, 2009

Daniel L. Brown, Esq.Sheppard, Mullin, Richter & Hampton LLP

dbrown@sheppardmullin.com(212) 653-8700

2

Topics Investigation

Discovery

Risks Associated With Use

3

Have you considered the opportunity to improve your case through a social network targeted investigation?

Similarly, is your client prepared to have his social networking activities investigated?

If not, it’s time to do so.

Social Networking Investigations

4

Employees at some law firms are already performing searches of MySpace and Facebook for both criminal and civil cases as part of their regular job duties.

Consider the opportunity to improve your case with social network targeted searches.

Social Networking Investigations Are Becoming Commonplace

5

Social Networking Investigations

But what can I really find on a social networking site that might be useful to my case?

6

But what can I really find on a social networking site that might be useful to my case?

Consider the statistics: Your adversary may very likely participate in social networking.

Profiles, postings, and connections contain a plethora of potentially useful evidence or other helpful information for your case.

7

Social Networking Investigations For example, Facebook users create a profile, which includes:

– Contact Information– Educational – Employment history– Online and offline contact information/residence – Users belong to networks which associate them with a city, college, employer, club,

etc.– Users upload photos and videos or are “tagged” in pictures posted by friends. – Wall postings where other users can post public messages, links etc. – Status updates, which contain real time messages– Messages– Friends lists– E-mail and “chat” real-time communication– Videos

A fully filled out Facebook profile contains over 40 pieces of personal information.

8

Potential Uses of A Social Networking Investigations

– Gain information about your opposition, and his or her case.

– Identify potential witnesses.

– Research potential jurors. See Trial Consultants Add Facebook/MySpace to Juror Research Toolbox, Molly McDonough, A.B.A. J., Sept. 29, 2008.

– Your judge and opposing counsel might also be networking.

– Users often indicate that they will be attending an event if itspromoted on Facebook. Consider this when trying to serve a subpoena on an elusive witness.

9

Potential Uses of A Social Networking Investigations

CLIENT INVESTIGATIONS

Conduct due diligence on potential clients.

Warn clients about the risks of their own use.

10

THE BOTTOM LINE

Social networking sites are potential discovery goldmines.

Consider a social networking targeted investigation.

Your client needs to know that his or her social networking use will be investigated.

11

DISCOVERY TOOLS

12

Social Networking And The Discovery Rules

FRCP 26 Document Requests: Seek production of relevant evidence.

FRCP 33 Interrogatories: Identify potential social networking usage.

FRCP 34 Requests for Admission: Authenticate the results of your

investigation

Depositions

Third-Party Discovery

13

Social Networking And The Discovery Rules

FRCP 26 Initial conferences:

Ask about social networking presence

Discuss production and preservation

Consider whether a litigation hold is necessary (for your client) or should be requested (of your adversary)?

14

Social Networking And The Discovery Rules

Deposition

Attack credibility Discover usage and establish relevance

Third-Party Discovery- Are “friends” fair game for discovery? Probably not, but what if they belong to the same networks?

Consider subpoenas to social networking hosts

15

Subpoenas to Social Networking Hosts

Stored Communications Act, 18 U.S.C. §§ 2701-2702 et seq.

"a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.”

In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606 (E.D. Va. 2008), (quashing subpoena seeking e-mail records of two investigators directly from America Online) (affirming ruling quashing subpoena to America Online seeking e-mails and other information relating to the accounts of non-party witnesses, stating “the statutory language of the [Stored Communications Act] does not include an exception for the disclosure of electronic communications pursuant to civil discovery subpoenas.”

However, a Court can require you to provide consent.

16

How Information Contained On Facebook Can Be Used In Discovery

To Attack Credibility

To Discover Character Evidence

To Dispute Damages

Te determine/rebut state of mind

To Identify Witnesses/Establish connections

To serve a pleading

17

Social Networking Websites May Be Particularly Useful For Certain

Types of Cases Personal injury Divorce Child Custody Loss of enjoyment of life claims Criminal proceedings Workers comp

18

Facebook DiscoveryPractical Tips

Conduct your own search

Hire a specialist

Ask about social networking presence in discovery, and utilize traditional discovery tools

19

RISKS ASSOCIATED WITH THE USE OF SOCIAL NETWORKING

WEBSITES

20

Won’t My “Privacy” Settings Protect Me From Discovery?

In order to limit access to their information, Facebook users can set different privacy settings for their “profiles” and pages.

As a result, some profiles are available to non-members (i.e., the public) and can be found through simple search engine queries.

Other users limit access to only members, only “friends” or only to a select few.

Your Privacy Settings could limit the information discovered in an investigation.

BUT, during discovery, there is no assurance of privacy!

21

Won’t My “Privacy” Settings Protect Me From Discovery?

Courts have already begun to find social networking sites to be relevant.

Therefore, you must know the risks…

22

President Obama’s Practical Tip For Future Litigants

“Well, let me give you some practical tips. First of all, I want everybody here to be careful about what you post on Facebook, because in the YouTube age, whatever you do, it will be pulled up again later somewhere in your life.”

23

What About My Privacy Settings?Once litigation commences, your privacy preferences give way to liberal discovery rules.

Consider the relevance of your social networking information, i.e., “evidence having any tendency to make the existence of any fact that is of consequences to the determination of the action more probable or less probable than it would be without the evidence.” Federal Rule of Evidence 401

24

Privacy Settings?During discovery, your “private” information will only remain private if the information sought is neither relevant nor likely to lead to the discovery of admissible evidence.

25

The Release of Your Private Information Might Not Just Be Embarrassing, It Could Be Dispositive.

Information found on a profile page, if admissible, can be used as the “smoking gun” evidence if found admissible

Cheating spouses beware: Time Magazine reports that divorce lawyers view social networking sites as an “evidentiary goldmines.”

Even if not case, dispositive, information found on profile pages can be used to discredit testimony.

26

IS A SOCIAL NETWORKING MIRANDA WARNING NECESSARY?

Social Networking Evidence Will Be Used Against You: Already being used as evidence at the sentencing stage of criminal

proceedings. See United States v. Villanueva, No. 08-12911, 2009 U.S. App. LEXIS 3852, *7 (11th Cir. 2009). (post-conviction images on defendant’s MySpace page of the defendant holding an AK-47 with a loaded clip taken after the defendant had been convicted of a violent felony could be used as evidence to enhance sentencing).

Already being used as evidence of intent and planning. See People v. Liceaga, No. 280726, 2009 Mich. App. LEXIS 160, *7 (Mich. Ct. App. Jan. 27, 2009) (in a murder trial, photographs discovered on thedefendant’s MySpace page admitted as evidence of intent and planning.Defendant’s profile Web page contained photographs of himself and the gun allegedly used to shoot the victim, and in which he was displaying a gang sign).

27

Various Risks/Uses Are Possible Non-custodial parents have used photographs posted on their child's Facebook

profile to discredit the custodial parent's parenting skills. See W.R. V. v. S.L. V., [2007J N.S.J. No. 354 (Sup. Ct.) at para. 31, T. K. B. v. PMS., [2008J B.C.J. No. 1923 (Sup. Ct.) at para. 16.

Moreno v. Hanford Sentinel, Inc., 172 Cal. App.4th 1125 (2009) (posting on MySpace.com was considered sufficiently publicized that the poster waived privacy rights).

A British Columbia court found that a plaintiff’s late-night computer usage on Facebook, as maintained in log in/log out records on his hard drive, was relevant evidence to his personal injury claim against his employer. See Pamela Pengelle, Spend Long Hours on Facebook? Claim You Can’t Work and You’re on the Hook!, Res Ipsa Loquitur, April 22, 2009, (citing Bishop v. Minichiello, B.C.J. No. 692 (S.C.J.) (2009).

28

Risks For Members of the Bar, And Bar Applicants

Florida Supreme Court Upholds Sanction Against Lawyer Who Called Judge a “Witch” on a Blog. See http://jonathanturley.org/2009/09/30/florida-supreme-court-upholds-sanction-against-lawyer-who-called-judge-a-witch-on-a-blog/

See Facebooking Judge Catches Lawyer in Lie, Sees Ethical Breaches, Molly McDonough, A.B.A. J., July 31, 2009. (Judge used Facebook to discover that attorney who asked for a continuance due to a death in the family was drinking and partying for that week).

Florida Bar Examiners considering reviewing Facebook profiles of applicants– e.g. to see whether you have a history of abuse or lying

North Carolina Judge reprimanded for “friending” an attorney and posting specifics about the case

29

CONCLUSION "[a] party who maintains a private, or limited

access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action. Leduc v. Roman, [2009] O.J. No. 681 (S.C.J.)

NYI_4223655v1

Social Networking Websites: The Emerging Litigation Tool

Admissibilityand Ethics Issues

November 2009

Steven C. Bennett Jones Day –New York

scbennett@jonesday.com(212) 326-3795

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Presenter Background

• Partner, Jones Day (New York office)• Commercial Litigation• Chair, Jones Day E-Discovery Committee• Member, Sedona Conference Working Group on

E-Discovery• Member, New York State Bar Association

Committee on E-Discovery• Adjunct Professor, Rutgers Law School, New

York Law School, Fordham Law School

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Disclaimers

• The views expressed are solely those of the presenter, and should not be attributed to the presenter’s firm or its clients.

• This presentation does not constitute legal advice; nor does it constitute solicitation of an attorney/client relationship.

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Topics Covered

• Admissibility issues• Ethics issues• Best practices• Further information

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Admissibility Issues

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Lorraine v. Markel American Ins. Co.,241 F.R.D. 534 (D. Md. 2007)

• Garden variety coverage dispute involving question whether lightning had caused damage to hull of plaintiff’s boat

• Parties attached ESI (primarily emails and attachments) to motions for summary judgment, but Court denied motions because neither party laid proper foundation for admission of ESI.

• The Court issued a 101 page decision setting forth the standard it would deem acceptable to authenticate ESI for admissibility.

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• The Court in Lorraine states:– “Very little has been written ... about what is required

to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes ‘such facts as would be admissible in evidence’ for such use in summary judgment practice.”

– “[Considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted.”

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Threshold Issues

• Relevance• Burden/prejudice/cumulative• Admissible ≠ dispositive• Subject to cross-examination, contrary

evidence, arguments about weight• Judge is gatekeeper

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Relevance of ESI

• Rules 401, 402, and 105– Does the ESI have “any tendency to make the

existence of any fact that is of consequence to the determination of the actionmore probable or less probable than it would be without the evidence.”

– Relatively low threshold; once admitted, the trier of fact determines the weight of the evidence.

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Authentication of ESI: FRE 901(a)

• Provides that the authentication of a document is “satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”

• Rule 901 requires a “foundation from which ajury could reasonably find that the evidence iswhat the proponent says it is…”

United States v. Safavian, 435 F. Supp. 2d 36 (D.C.C. 2006).

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Authentication of ESI: FRE 901(b)

• Rule 901(b)(1)-testimony by a witness with knowledge that a matter is what it is claimed to be

• Rule 901(b)(3)-comparisons by the trier of fact or expert witnesses with specimens which have been authenticated. Safavian, 435 F. Supp. 2d at 40

• Rule 901(b)(4)-identified by “appearance, contents, substance, internal pattern, or other distinctive characteristics, taken in conjunction with the circumstance. United States v. Siddiqui, 235 F.3rd 1318 (11th Cir. 2000)

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Authentication of ESI: FRE 901(b)(9)

• Rule 901(b)(9)- authentication by evidence “describing a process or system used to produce a result and showing that the process or system produces an accurate result.”

• A safe foundation can be established with the strict approach of In re Vee Vinhnee, 336 B.R. 437 (9th Cir. BAP 2005)

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Authentication of ESI: Typical Challenges

• Challenge the authenticity of both computer-generated and computer-stored records by questioning whether the records were altered, manipulated, or damaged after they were created.

• Question the authenticity of computer-generated records by challenging the reliability of the computer program that generated the records.

• Challenge the authenticity of computer-stored records by questioning the identity of their author.

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Authentication of ESI: Expert Questions

• What is the evidence, or what does it purport to be?Forensics Expert: “This is a printout of data that I recovered on 4/26/07 from the hard disk drive primarily used by John Doe of the Acme Corporation.”

• Where did it allegedly come from?Forensics Expert: “The hard drive was taken from the office of John Doe on 1/1/07. It was contained within a Generic PC bearing model XXXX and S/N YYYY.”

• Who created, discovered, or recovered it?Forensics Expert: “The data appears to have been created by John Doe. I discovered and recovered it from his hard disk drive using computer forensic techniques.”

• How was it created, discovered, or recovered?Forensics Expert: “I made an image of the hard disk drive using a forensic imaging device. This device is designed to make a perfect copy of a disk and does not alter the data on the disk being copied.”

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Authentication of ESI: Websites

• Hutchens v. Hutchens-Collins, 2006 WL 3490999 (D.Or. 2006)– Defendant hired forensic vendor to download content of

website pages to “write-only” CD-ROM’s.– Website freely available on internet.– Vendor tracked registered domain name to plaintiff’s

corporation through publicly available WHOIS system.– Court held totality of circumstances sufficient to

authenticate website documents.

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Authentication of ESI: Chat Rooms

United States v. Tank, 200 F.3rd 627 (9th Cir. 2000).• The court held gov’t adequately authenticated chat room

log printouts maintained by a co-defendant.• The government evidence included testimony from the co-

defendant about the procedure he used to create logs and his recollection that logs appeared to be accurate representation of conversations among members.

• Despite co-defendant’s deletion of portion of log to free up space, log was authenticated. Deletions would go to weight of evidence, not admissibility.

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Rule 1003: Duplicates are Admissible

• A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

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Original Evidence Rule: Printouts

• Printouts of ESI are admissible pursuant to the best evidence rule.

• “If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original”.” Rule 1001(3).

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Review of ApplicableEthics Rules

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Model Rules Not Uniform

• Nearly all states have adopted some form• Variations/modifications• Individual interpretations (e.g., New York)

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Limited Authority OnSocial Networking

• Model Rules do not expressly mention• Reason by analogy: email, web sites, chat

rooms

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Potentially Applicable Rules

• Model Rule 4.1: lawyer may not make false statement of material fact to third person

• Model Rule 4.2: lawyer may not communicate with represented party, about subject of representation, without consent of other lawyer

• Model Rule 8.4(c): lawyer may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation

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Lawyers And Investigators (Sometimes) May Hide Identity To

Gain Information• Prosecutors/under cover investigations• Civil claims: IP infringement, civil rights

But:• No surreptitious retrieval/review of email.

See NYSBA Comm. On Prof’l Ethics, Op. 749 (2001).• May not use private investigator to record conversations

with employees of adversary.See Midwest Motor Sports v. Artic Sales, Inc., 347 F.3d 693 (8th Cir. 2003).

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Parties (Sometimes) May Contact Other Parties Directly

• Party free to contact other parties (and witnesses). MR 4.2, cmt. 4.

• No ethics rules prevent direct contact. See Fidelity Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co., 2002 WL 1433717 (N.D. Ill. July 2, 2002).

• Lawyer may not “mastermind” contact with represented party. Trumbull Cty. Bar Assoc. v. Makridis, 671 N.E. 2d 31 (Ohio 1996) (plaintiff’s lawyer wrongly suggested client contact defendant about proposed testimony, shortly before trial).

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Approaching A Witness In Cyberspace

• Cannot use third-party to “friend” a witness, to gain information. Phil. Bar Op. 2009-02

• “Deceptive” not to reveal connection to lawyer, and intent to gain information for litigation

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Further Resources

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Web-Sites

• www.abanet.org (law practice management)• www.abanet.org (elawyering task force)• www.abanet.org (legal technology resource

center)• www.legalethics.com (focus on technology

issues)

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Texts

• Robert F. Chapski, Embracing New Technology And Avoiding Its Pitfalls, 50 DRI For The Defense (Oct. 2008)

• Anthony E. Davis & David J. Elkanich, A Lawyer’s Guide to Managing E-Lawyering Risks(2006)

• Cydney Tune & Marley Degner, Blogging And Social Networking: Current Legal Issues, 962 PLI/Pat 113 (Mar. – Apr. 2009)

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Questions