Quick Tips, Issues Concerning Social Media and Electronic Communications, DC Trial, Vol. XIII, No. 3 (Fall 2013).

For this column, I will discuss issues that trial lawyers face regarding social media (e.g., Facebook, Instagram, Twitter, YouTube, Flicker, etc.) and electronic communications.

I. YOUR CLIENTS

We all now have clients who range from prodigious users of social media, who post what seems to me to be an astonishing array of life details, to those who only use social media on rare occasions. Further, many of our clients send emails, text messages, and instant messages. As Plaintiff’s counsel, we should fear our clients posting something on a social media platform that could be taken out of context by defense counsel, who could then use it to diminish or destroy the Plaintiff’s case. As anyone who has tried a jury trial knows, trials are often about impressions, not reality. For example, an injured client may be able to go on a vacation that she had planned and funded 6 months before the event that injured her, but may have to severely curtail her planned activities. She may spend most of the vacation in her room and be miserable about this. Nonetheless, a picture of the client looking drunk on the beach with a large drink in her hand accompanied by the words “Living it up in Cancun!” will make it seem to the jurors that she was unaffected by her injuries. So . . . how do you cope with this?

At our office, we discuss the perils of social media with each client during the first contact. During the initial client meeting, we provide specific examples of how a poorly conceived post could destroy or severely hamper a legitimate case. Further, because many people don’t realize that their employers can monitor and produce emails sent from an employer’s account or device we also advise that communications sent from such an account or device may be discovered. Next, we attempt to cement a commitment from our clients by including the following paragraph in all of our firm’s fee agreements:

I agree not to post or publish anything on the internet, on Facebook, YouTube, Flicker, Twitter, Instagram or any other social networking site about my case, my injuries, my health or my activities. Further, I will instruct and other family members not to do so. I understand that the opposing side may search these social networking sites and use the information against me in negotiations, in discovery, and/or at trial. I further agree not to send any emails, instant messages or text messages relating to my [insert adverse event] and resulting harm, unless they are to you or your staff and are from my personal phone or personal email address.

If a lawsuit is about to be filed on behalf of a client, the above conversation is repeated and also discussed in a litigation context. As you would expect, there are other ways of dealing with this issue. Some lawyers have clients sign lengthier stand alone agreements concerning similar topics. ^[1]

II. OOPS, YOUR CLIENT HAS ALREADY POSTED

Okay, so what if your client tells you during that first contact that she has already posted about topics arguably related to her case before she made contact with your office? Most importantly, don’t instruct the client to delete or destroy the post or photograph. At worst, doing so could jeopardize your law license. It could also lead to a case-damaging spoliation instruction. In a Virginia case, Plaintiff’s counsel, Matthew B. Murray, Esq., was found by Circuit Judge Edward Hogshire to have instructed his client to delete photographs from his client’s Facebook account and to have withheld information from the court about this.^[2] After affirming the substantial verdict Mr. Murray’s client received, the Judge ruled that Mr. Murray had to pay $542,000 and his client $180,000 in legal fees and expenses to the defense firms. On July 17, 2013, the Virginia State Bar Disciplinary Board, finding violations of numerous Rules of Professional Conduct, entered an Agreed Disposition Memorandum Order suspending Mr. Murray’s license to practice for five years.^[3]

Regarding the discoverability of social media evidence, the Federal Court out of the Southern District of Indiana framed the issue as follows:

The main challenge in this case is not one unique to electronically stored information generally or to social networking sites in particular. Rather, the challenge is to define appropriately broad limits – but limits nonetheless – on the discoverability of social communications in light of a subject as amorphous as emotional & mental health, and to do so in a way that provides meaningful direction to the parties ^[4]

Courts have taken many different approaches in dealing with the discoverability of social media profiles. Some courts have ordered parties to provide the requesting party with login and password information, others have ordered parties to produce full unredacted histories of their social media profiles for an in camera review so the court can determine relevance. Courts that have ordered such broad discovery usually do not do so until there has been a dispute whether the disclosing party truly produced all communications relevant to the requesting party’s discovery request. ^[5]

The recent trend by courts has been to treat discovery of social media profiles and communications in much the same way they do discovery of paper documents. The producing party’s attorney should be the first arbiter of relevance, producing only those parts of the social media profile/communications that are relevant and responsive to the Defendant’s request. The requesting party should not be granted unfettered access to producing party’s profile, or be provided with complete unredacted copies of a party’s profile. Such a broad disclosure would allow the requesting party to engage in a “fishing expedition” and give them access to large amounts of irrelevant information that would be potentially embarrassing to the producing party. Indeed this is the approach taken by a District Court in California. In that case, Plaintiff alleged she suffered from PTSD and depression as a result of Defendant’s action. Defendant requested all of Plaintiff’s social media profile information/communication from the date of the incident, claiming that all communications contained therein were relevant to the Plaintiff’s mental state. In denying the Defendant’s request as overbroad, the court stated, “[t]he simple fact that a claimant has had social communication is not necessarily probative of the particular mental and emotional health issues in the case, rather it must be the substance of the communication that determines relevance. ” A request that is overbroad and not tailored to lead to the discovery of relevant information will be denied.^[8]

Other courts have similarly held that it is inappropriate for a requesting party to make a blanket request for all information/communications contained in the producing party’s social media profile. These courts have required the requesting party to show a “factual predicate for the request, suggesting the existence of relevant information prior to ordering access to sought after information.”^[9] This prevents the requesting party from engaging in a fishing expedition, and limits the disclosure to only those social media profile information/communications that are relevant and responsive to the claims or defenses of a given case. If counsel cannot negotiate a resolution to a discovery dispute regarding the production of such materials, a Motion for Protective Order could be useful.

If you determine that you must produce your client’s social media evidence (or are ordered to do so), a Motion in Limine would be your next line of defense for excluding arguably irrelevant material (under FRE 401 or 402) or unfairly prejudicial material (under FRE 403). Note that evidentiary impediments to the admissibility of such materials may also exist. See Section V, below,

III. FORMAL DISCOVERY REGARDING SOCIAL MEDIA

Currently, not all defense attorneys are propounding discovery to get this information. If you receive such a discovery request, you may want to immediately propound an identical (or more comprehensive) request to the defendant. While the scope of discovery regarding a defendant is typically smaller (unless the defendant has also sued your client for damages), the defendant could have posted about, for example, the car crash that led to the case or some impairment that affected his ability to drive. Countering with your own discovery requests may give you more leverage in negotiating with defense counsel over plaintiff’s production.

IV. INFORMAL DISCOVERY REGARDING SOCIAL MEDIA – ETHICS

Thus far, it seems that counsel can review the public areas of an adverse party’s or witness’s social media pages without running afoul of ethics rules. ^[10] These pages will often come up in a basic Google search of a person’s name. A more interesting question is whether counsel or an agent (someone in counsel’s office or at counsel’s request) can “friend” the opposing party or witness in an effort to gain access to his or her private pages. First, whether the person seeking access is the attorney or the attorney’s agent seems not to matter. My advice: Don’t waste your time. The few authorities that have considered this question have concluded that it is unethical to try to obtain this access via false pretenses. For example, the New York City Bar has stated that “ethical boundaries to such ‘friending’…are not crossed when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements.” ^[11] A Philadelphia Bar Association advisory opinion adds the additional requirement that an attorney or agent also disclose the reason for making the friend request (it seems highly unlikely to this author that useful information would be obtained after making such a disclosure).^[12] Unsurprisingly, another authority has opined that an attorney may not “friend” a represented party.^[13]

V. ADMISSIBILITY OF SOCIAL MEDIAL EVIDENCE

According to a leading expert on electronic evidence, The Honorable Paul W. Grimm,^[14] “[a]s electronic evidence becomes more ubiquitous at trial, it is critical for courts to start demanding that counsel give more in terms of authentication, and counsel who fail to meet courts’ expectations will do so at their own peril.” ^[15] Judge Grimm has written extensively on this subject and I highly recommend that you review his writings if you are the proponent or opponent of such evidence. ^[16] In addition, the following cases, also cited by Judge Grimm (and one decided by him) are worth reading: Tienda v. Texas, 358 S.W.3d 633 (Tex. Crim. App. 2012) (photographs and messages gleaned from social media admitted); Griffin v. Maryland, 19 A.3d 415 (Md. 2011) (holding that admitting printouts from MySpace into evidence was reversible error due to failure to authenticate); Lorraine v. Markel Am. Ins., 241 F.R.D. 534, 555-56 (D. Md. 2007) (authenticating testimony may be provided by witness with personal knowledge about how the social media information is typically generated).

VI. JUDGES

It seems to this author like an obviously bad idea to “friend” judges before whom you may appear. California has a publicly issued ethics opinion on this subject. It provides that judges may participate in an online social networking community, and that his or her online social network may include lawyers who might appear before him or her. The opinion states, however, that a judge’s online social network may not include lawyers who have cases pending before the judge.^[17] Interestingly, the opinion contains no per se prohibition on Judges’ online interaction with lawyers who have cases pending before them.^[18] It is greatly concerned with the appearance of impropriety and presents several factors for determining whether these interactions might create the appearance of impropriety: (1) the nature of the social networking site (the more personal the site, the greater the potential for the appearance of impropriety), (2) how many friends the judge has on his or her page (the more friends, the lower the likelihood of the appearance of impropriety), (3) the judge’s practice in deciding whom to include in his or her online social network (the more inclusive the judge’s site, the less likely the appearance of impropriety), and (4) how regularly the specific attorney appears before the judge.^[19]

VII. JURORS

At least one authority has concluded that it is acceptable to access the internet to review publicly available information about a potential juror during trial.^[20] As for “friending” a potential juror, this is an easy call: Don’t do it.

^[1] If you would like a sample, email me at eric@stravitzlawfirm.com.

^[2] See Final Order, Lester v. Allied Concrete Co., In the Circuit Court of the City of Charlottesville, Case No. CL-08-150 (October 21, 2011).

^[3] VSB Docket Nos. 11-070-088405 and 11-070-088422 (July 17, 2013).

^[4] EEOC v. Simply Storage Management , 270 F.R.D. 430, 434 (S.D. Ind 2010).

^[5] Bass ex rel. Bass v. Miss Porter’s School , 3:08 CV 1807 (JBA), 2009 WL 3724968 (D. Conn. Oct. 27, 2009); Thompson v. Autoliv ASP, Inc., 2:09-CV-01375-PMP, 2012 WL 2342928 (D. Nev. June 20, 2012).

^[6] Mailhoit v. Home Depot U.S.A., Inc , No. CV 11-03892, 2012 WL 3939063 (C.D. Cal Sept. 7, 2012); EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010).

^[7] Mailhoit v. Home Depot U.S.A., Inc , No. CV 11-03892, 2012 WL 3939063 (C.D. Cal Sept. 7, 2012).

^[8] Mailhoit v. Home Depot U.S.A., Inc , No. CV 11-03892, 2012 WL 3939063 (C.D. Cal Sept. 7, 2012) (quoting EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010); Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 389 (E.D. Mich. 2012); Mackelprang v. Fid. Nat. Title Agency of Nevada, Inc., 2:06-CV-00788-JCM, 2007 WL 119149 (D. Nev. Jan. 9, 2007).

^[9] Tompkins v. Detroit Metro. Airport , 278 F.R.D. 387, 389 (E.D. Mich. 2012)(Court denied Defendant’s request for private Facebook information because publicly available information was not inconsistent with the plaintiff’s claims stating that the Federal Rules do not grant a requesting party a generalized right to rummage at will through information that the responding party has limited from public view); Mackelprang v. Fid. Nat. Title Agency of Nevada, Inc., 2:06-CV-00788-JCM, 2007 WL 119149 (D. Nev. Jan. 9, 2007) (Denied Defendant’s request because it was based on nothing more than a suspicion or speculation as to what information might be contained and ordering production of all email messages would cast too wide a net for any information that might be relevant and discoverable).

^[10] See N.Y. State Bar Ass’n, Comm. on Prof. Ethics, Op. 843 (2010).

^[11] Obtaining Evidence From Social Networking Websites, Formal Opinion 2010-2, (New York City Bar Ass’n, 2010).

^[12] Professional Guidance Committee, Opinion 2009-02, (Philadelphia Bar Ass’n, March 2009).

^[13] SDCBA Legal Ethics Opinion 2011-2012 (Adopted by the San Diego County Bar Legal Ethics Committee, May 24, 2011).

^[14] District Judge, United States District Court for the District of Maryland.

^[15] Paul W. Grimm, et al., “Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information,” 42 Akron L. Rev. 357, 366 (2009).

^[16] See, e.g. , Authentication of Social Media Evidence, American Journal of Trial Advocacy, 36 Am. J. 433 (2013).

^[17] Cal. Judges Ass’n Judicial Ethics Comm., Op. 66.

^[18] Id. at 6.

^[19] Id. at 8.

^[20] Carino v. Muenzen , 2010 WL 3448071 (N.J. Super. A.D., Aug. 30, 2010).