Social Networking

Whether you agree with the decision or not, the Supreme Court seems to have its hands around some of the issues facing social-networking and users' rights. In City of Ontario v. Quon, the Court found no Fourth Amendment violations occurred when a police officer's supervisors read his personal electronic (text) messages that were sent on his city-issued pager while he was at work. The Court ruled: “prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices.” City of Ontario v. Quon, 130 S. Ct. 2619 (U.S. 2010). Justice Kennedy's opinion accurately concluded the current status of social networking: [r]apid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve. Id.

Judges Really Are Your 'Friends'

Social networking is not just for criminal cases and divorces anymore. Similar to more traditional forms of electronic communication, such as e-mail, the outcome of more and more employment-law cases, commercial litigation, personal injury, unfair competition, and intellectual property cases are turning on evidence found on social-networking sites.

This past summer, in a slip-and-fall case in Nashville, the defendant (the “Coyote Ugly” bar, where the plaintiff fell while climbing onto the bar), subpoenaed Facebook, seeking photos that the plaintiff posted about the incident. The court refused, denying a Motion to Compel under the Stored Communications Act (SCA), but then offered to actually create a Facebook page for the exclusive purposes of reviewing discovery data ' in social-networking parlance, the judge became a “friend” of the case. On June 3, 2010, Judge Joe Brown issued the following order:

In order to try to expedite further discovery regarding the photographs, their captions, and comments, the Magistrate Judge is willing to create a Facebook account. If Julie Knudsen and Michael Vann will accept the Magistrate Judge as a “friend” on Facebook for the sole purpose of reviewing photographs and related comments in camera, he will promptly review and disseminate any relevant information to the parties. The Magistrate Judge will then close this Facebook account. Barnes v. CUS Nashville, LLC, 2010 U.S. Dist. LEXIS 52263 (M.D. Tenn. May 27, 2010).

Judge Brown's order is significant for two reasons: first, it shows how the bench's attitude is shifting towards this new world of social-networking, and, second, it shows how social networking can be used to obtain evidence in litigation.

It is important to note that the SCA generally prohibits a social-networking or e-mail site, such as “gmail,” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.” It further prohibits ' again, subject to certain exceptions ' a “person or entity providing remote computing service to the public” from “knowingly divulg[ing] to any person or entity the contents of any communication which is carried or maintained on that service.”

Obtaining Evidence from Social-Networking Sites

Most social-networking users want the entire world to know everything (or nearly everything) about them. This does not stop at the courthouse steps. Not blocking access to their “profile” pages, and information (including pictures) about their background, activities, and various other escapades and transgressions, means that all of this potentially harmful information is available to the adverse parties and their counsel in litigation. As soon as litigation occurs, or seems eminent, it is important to search the Internet and social-networking sites for valuable litigation information. Once information is found, it should be preserved just like any other information.

But is this ethical? A couple of reputable Bar Associations have weighed in. The Philadelphia Bar Association opined that an attorney could not gain access to an adverse witness's Facebook and MySpace pages by asking a third party (whose name the witness would not recognize) to “friend” the witness. The bar association did determine, however, that the attorney could attempt to “friend” the witness himself, using his real name, as that would not constitute “conduct involving dishonesty, fraud, deceit or misrepresentation.” (Source: Phila. Bar Assoc., Opinion 2009-02 (March 2009)). Also, the New York State Bar Association opined that attorneys may obtain information from social-networking sites to use for impeachment purposes as long as the profile is available to the entire social-networking site and the lawyer, or no one under her direction, “friends” the person. (Source: N.Y. State Bar Assoc., Ethics Opinion 843 (Sept. 10. 2010).

But if the opposing party or adverse witnesses do not have public accounts, then the lawyer will have to obtain the information the old-fashioned way ' through discovery. It is recommended that the lawyer first start with some interrogatory requests seeking all social-networking sites that the witnesses use, their usernames (the names that appear on the screens) and any aliases. Then, document requests should ask for postings, messages, pictures, and for the identity of any other “friends” who might also have discoverable knowledge or information for the case. This information can and should be used in depositions as well. To expedite this process, some social-networking companies have created a “consent” form, which authorizes the social-networking site to disclose information on the party's or witnesses' pages.

But just like with e-mails and other traditional forms of discovery ' especially if stored electronically ' there is no real difference between discovery of social-networking and discovery of other electronically stored information. Therefore, be sure to keep your discovery requests focused on the topic. A request for “all information” in a social-networking site is likely to be met with an objection because it is vague and overly broad. Recently, courts have held, essentially, that if a party or a witness can share its social-networking content (or at least parts of it) with hundreds of “friends,” it can share it with the opposing side. Equal Employment Opportunity Cmm'n v. Simply Storage Mgmt. LLC, 2010 WL 3446105 (S.D. Ind. May 11, 2010); Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010) (court ordered a personal-injury plaintiff to provide a consent and authorization so Facebook and MySpace could turn over access to her entire Facebook and MySpace pages); See also Bass v. Miss Porter's School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009) (ordering the production of the plaintiff's entire Facebook profile); Ledbetter v. Wal-Mart Stores Inc., 2009 WL 1067018 (D. Colo. Apr. 21, 2009) (denying plaintiffs' motion for protective order regarding their Facebook, MySpace and Meetup.Com content).

Spoliation

As discussed above, discovery of relevant information on social-networking sites is not much different from other forms of discovery. Therefore, lawyers need to be able to use it to their advantage, but must also protect their clients from spoliation claims. To the extent that social-networking content is like other forms of electronically stored information, the same legal standards regarding preservation, collection, review and production apply. But unlike e-mail, social-network content is not really in the party's possession, custody or control, and, furthermore, this information is constantly changing and being updated. Consider this: Should you have to preserve every iteration of your Facebook profile? If you update your profile and the old version had relevant information to a particular case, is that considered spoliation? Parties should consider whether relevant information may be found on a social-networking sites, and if so, whether or not they are required to or wish to preserve and/or collect such information. Cost considerations will no doubt come into play.

Preserving relevant social-networking data is no different from preserving any other data. Certain IT providers and software packages are available to capture and preserve ever-changing Web sites and social-networking sites.

Gary S. Kessler, a member of this newsletter's Board of Editors, is a shareholder of Kessler Collins PC in Dallas. Mr. Kessler is board certified in Civil Trial Law by the Texas Board of Legal Specialization. He has been listed in Best Lawyers in America in the Business Litigation Section for over 10 years. Anthony J. Barbieri is a shareholder of the firm. He is a Fellow of the Litigation Counsel of America, and a member of the State Bar of Texas, the Dallas Bar Association and the American Bar Association.

Social networking (aka “social media”) is taking over the world. Just look at the latest statistics:

• Facebook alone has more than 500 million users (and growing by the second);
• Fifty percent of its active users log on to Facebook in any given day;
• The average user has 130 friends. (Source: http://www.facebook.com/press/info.php?statistics).
• If Facebook were a country, it would be the third most populated. (Source: http://www.techxav.com/2010/03/19/if-facebook-were-a-country/).

That is just Facebook, but there are many more social-networking sites, for example, Twitter, LinkedIn, MySpace, YouTube and blog.com, and this list is not all-inclusive.

Not only is social networking taking over how we live, work, communicate and “socialize,” it is changing how lawyers litigate and practice law. What is no surprise is that, as usual, technology and society are light years ahead of the legal world. Many lawyers lack the knowledge and guidance on the discoverability and use of social-networking content in civil litigation and at the workplace. Following is a short discussion of the use of social networking in the work place and the courtroom.

The Supreme Court Weighs In

Whether you agree with the decision or not, the Supreme Court seems to have its hands around some of the issues facing social-networking and users' rights. In City of Ontario v. Quon, the Court found no Fourth Amendment violations occurred when a police officer's supervisors read his personal electronic (text) messages that were sent on his city-issued pager while he was at work. The Court ruled: “prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices.” City of Ontario v. Quon , 130 S. Ct. 2619 (U.S. 2010). Justice Kennedy's opinion accurately concluded the current status of social networking: [r]apid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve. Id.

Judges Really Are Your 'Friends'

Social networking is not just for criminal cases and divorces anymore. Similar to more traditional forms of electronic communication, such as e-mail, the outcome of more and more employment-law cases, commercial litigation, personal injury, unfair competition, and intellectual property cases are turning on evidence found on social-networking sites.

This past summer, in a slip-and-fall case in Nashville, the defendant (the “Coyote Ugly” bar, where the plaintiff fell while climbing onto the bar), subpoenaed Facebook, seeking photos that the plaintiff posted about the incident. The court refused, denying a Motion to Compel under the Stored Communications Act (SCA), but then offered to actually create a Facebook page for the exclusive purposes of reviewing discovery data ' in social-networking parlance, the judge became a “friend” of the case. On June 3, 2010, Judge Joe Brown issued the following order:

In order to try to expedite further discovery regarding the photographs, their captions, and comments, the Magistrate Judge is willing to create a Facebook account. If Julie Knudsen and Michael Vann will accept the Magistrate Judge as a “friend” on Facebook for the sole purpose of reviewing photographs and related comments in camera, he will promptly review and disseminate any relevant information to the parties. The Magistrate Judge will then close this Facebook account. Barnes v. CUS Nashville, LLC, 2010 U.S. Dist. LEXIS 52263 (M.D. Tenn. May 27, 2010).

Judge Brown's order is significant for two reasons: first, it shows how the bench's attitude is shifting towards this new world of social-networking, and, second, it shows how social networking can be used to obtain evidence in litigation.

It is important to note that the SCA generally prohibits a social-networking or e-mail site, such as “gmail,” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.” It further prohibits ' again, subject to certain exceptions ' a “person or entity providing remote computing service to the public” from “knowingly divulg[ing] to any person or entity the contents of any communication which is carried or maintained on that service.”

Obtaining Evidence from Social-Networking Sites

Most social-networking users want the entire world to know everything (or nearly everything) about them. This does not stop at the courthouse steps. Not blocking access to their “profile” pages, and information (including pictures) about their background, activities, and various other escapades and transgressions, means that all of this potentially harmful information is available to the adverse parties and their counsel in litigation. As soon as litigation occurs, or seems eminent, it is important to search the Internet and social-networking sites for valuable litigation information. Once information is found, it should be preserved just like any other information.

But is this ethical? A couple of reputable Bar Associations have weighed in. The Philadelphia Bar Association opined that an attorney could not gain access to an adverse witness's Facebook and MySpace pages by asking a third party (whose name the witness would not recognize) to “friend” the witness. The bar association did determine, however, that the attorney could attempt to “friend” the witness himself, using his real name, as that would not constitute “conduct involving dishonesty, fraud, deceit or misrepresentation.” (Source: Phila. Bar Assoc., Opinion 2009-02 (March 2009)). Also, the New York State Bar Association opined that attorneys may obtain information from social-networking sites to use for impeachment purposes as long as the profile is available to the entire social-networking site and the lawyer, or no one under her direction, “friends” the person. (Source: N.Y. State Bar Assoc., Ethics Opinion 843 (Sept. 10. 2010).

But if the opposing party or adverse witnesses do not have public accounts, then the lawyer will have to obtain the information the old-fashioned way ' through discovery. It is recommended that the lawyer first start with some interrogatory requests seeking all social-networking sites that the witnesses use, their usernames (the names that appear on the screens) and any aliases. Then, document requests should ask for postings, messages, pictures, and for the identity of any other “friends” who might also have discoverable knowledge or information for the case. This information can and should be used in depositions as well. To expedite this process, some social-networking companies have created a “consent” form, which authorizes the social-networking site to disclose information on the party's or witnesses' pages.

But just like with e-mails and other traditional forms of discovery ' especially if stored electronically ' there is no real difference between discovery of social-networking and discovery of other electronically stored information. Therefore, be sure to keep your discovery requests focused on the topic. A request for “all information” in a social-networking site is likely to be met with an objection because it is vague and overly broad. Recently, courts have held, essentially, that if a party or a witness can share its social-networking content (or at least parts of it) with hundreds of “friends,” it can share it with the opposing side. Equal Employment Opportunity Cmm'n v. Simply Storage Mgmt. LLC, 2010 WL 3446105 (S.D. Ind. May 11, 2010); Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010) (court ordered a personal-injury plaintiff to provide a consent and authorization so Facebook and MySpace could turn over access to her entire Facebook and MySpace pages); See also Bass v. Miss Porter's School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009) (ordering the production of the plaintiff's entire Facebook profile); Ledbetter v. Wal-Mart Stores Inc., 2009 WL 1067018 (D. Colo. Apr. 21, 2009) (denying plaintiffs' motion for protective order regarding their Facebook, MySpace and Meetup.Com content).

Spoliation

As discussed above, discovery of relevant information on social-networking sites is not much different from other forms of discovery. Therefore, lawyers need to be able to use it to their advantage, but must also protect their clients from spoliation claims. To the extent that social-networking content is like other forms of electronically stored information, the same legal standards regarding preservation, collection, review and production apply. But unlike e-mail, social-network content is not really in the party's possession, custody or control, and, furthermore, this information is constantly changing and being updated. Consider this: Should you have to preserve every iteration of your Facebook profile? If you update your profile and the old version had relevant information to a particular case, is that considered spoliation? Parties should consider whether relevant information may be found on a social-networking sites, and if so, whether or not they are required to or wish to preserve and/or collect such information. Cost considerations will no doubt come into play.

Preserving relevant social-networking data is no different from preserving any other data. Certain IT providers and software packages are available to capture and preserve ever-changing Web sites and social-networking sites.

Gary S. Kessler, a member of this newsletter's Board of Editors, is a shareholder of Kessler Collins PC in Dallas. Mr. Kessler is board certified in Civil Trial Law by the Texas Board of Legal Specialization. He has been listed in Best Lawyers in America in the Business Litigation Section for over 10 years. Anthony J. Barbieri is a shareholder of the firm. He is a Fellow of the Litigation Counsel of America, and a member of the State Bar of Texas, the Dallas Bar Association and the American Bar Association.