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April BeslDinsmore & Shohl LLP
February 3, 2011
Copyright 2011 April L. Besl
Nothing in this presentation should be construed or is intended to be legal advice. If you have specific questions, please consult with the counsel of your choice. All images and trademarks used in the presentation are property of their respective owners.
Copyright 2011 April L. Besl
The World of Social Media Discoverability of Social Media Admissibility of Social Media Practice Tips When Using Social Media
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
A New Form of Worldwide Communication◦ Always Accessible Via Mobile Phones
Communication Often Without a “Filter”◦ People Talk About Their Lives, Their Jobs, Their
Families, Their Issues
A New Tool for Law Enforcement◦ Cincinnati Police and UC Marketing Using Social
Media to Combat Gangs
Copyright 2011 April L. Besl
Facebook Added Over 200 Million Users in Less than a Year◦ It took 38 Years for Radio and 13 Years for TV to reach 50 Million Users!
1 in 6 Higher Education Students Are Enrolled in Online Curriculum
Ashton Kutcher and Britney Spears Have More Twitter Followers Than The Entire Populations of Sweden, Israel, Switzerland, Ireland, Norway, or Panama
Studies Show Wikipedia Is As Accurate As Encyclopedia Britannica◦ 78% of these articles are non-English
There Are Over 200,000,000 Blogs
80% of Twitter Usage is on Mobile Devices◦ People Can Update Anytime and Anywhere – Imagine What That Means with
Juries and the Press!
Stats from Socialnomics Blog◦ Erik Qualman: Global Vice President for EF Education◦ Socialnomics – How Social Media Transforms the Way We Live and Do Business
Top 10 Book in Web Marketing, e-Commerce, and Business & Culture – Culture on Amazon.com
Copyright 2011 April L. Besl
Growing Area of the Law ◦ Cases Are Coming Out Everyday With New Rules
and New Interpretations of Rules◦ Few Courts Have Actually Addressed These Issues
New Technology Keeps Changing the Rules
New Role as Educator◦ Many Older Practitioners, Judges, and Other
Professionals Need to Be “Taught” About the Technology
Copyright 2011 April L. Besl
New Worries and Considerations◦ From Defendants to Prosecutors to Judges to
Jurors◦ Increased Presence of the Public
Example: Ryan Widmer Case◦ Bloggers, Twitter Feeds Feeding Every Detail to
the Public◦ During Voir Dire Jurors Were Asked if They Could
Refrain from Social Media for the Duration of Trial
Copyright 2011 April L. Besl
Oregon Forcible Rape Case◦ Teenager Told Police She Would Never Willingly
Have Had Sex
◦ Defense Lawyer Laura Fine Used Provocative Photos and Comments on Her MySpace Page About Parties, Drinking, and “Getting Some” to Discredit Her
◦ Grand Jury Dismissed the Charge
Copyright 2011 April L. Besl
Florida Federal Drug Trial, U.S. v. Frank Hernandez, Crim. No. 07-60027 (S.D. Fla)◦ Juror Admitted to Doing Research on the Case on
the Internet
◦ When Questioned by the Judge Nine Other Jurors Admitted to Doing the Same Thing! 10 of 12 Jurors Were Violating Express Instructions
◦ Mistrial Declared After Eight Weeks of Work by Prosecutors and Defense Lawyers
Copyright 2011 April L. Besl
Michigan Juror Removed from Criminal Trial in September 2010◦ Punished for Contempt and Ordered to Pay $250
Fine and Write Essay About Constitutional Right to Fair Trial
Juror Posted on Facebook During Trial:◦ “actually excited for jury duty tomorrow. It’s
gonna be fun to tell the defendant they’re GUILTY.”
Copyright 2011 April L. Besl
Federal Rules of Civil Procedure State That:◦ Parties may obtain discovery on any non-
privileged matter that is relevant to any claim or defense.
Including!◦ Requesting that another party “produce and permit
the [requesting] party … to inspect, copy, test, any … designated documents or electronically stored information.”
Rules 26(b); 34(a)
Copyright 2011 April L. Besl
Relevance is an “Extremely Broad” Concept in Discovery – But It Does Have Its Limits!
Quigley Corp. v Karkus, 2009 WL 1383280◦ Court held that Facebook “Friends” Status of Co-
Defendants Not Relevant to Claims of SEC Violation
Copyright 2011 April L. Besl
What Are The Main Social Media Sites Where Information Will Be Found? ◦ Facebook◦ Twitter◦ Blogs◦ LinkedIn◦ MySpace◦ YouTube
The List for Each Defendant Though Will Be Different!
Copyright 2011 April L. Besl
One of the World’s Largest Networking Sites
Functions Similar to a “Yearbook” ◦ People Can Post Comments to A Page Featuring Photos
and Personal Information Similar to Signing a Yearbook
Over Years Has Grown Outside Previous Mold◦ Chat Feature◦ Interactive Games Played Exclusively on Facebook
◦ Still Keeps “Yearbook” Theme in Personal Information and Postings
Copyright 2011 April L. Besl
Wall Posts ◦ Where Individuals and Friends Can Post “Comments”
or “Status Updates”
Profile Information About the Person◦ Education◦ Work◦ Interests◦ Hobbies
Photos◦ Photos Tagged by Someone Else◦ Photos Uploaded by the Person
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Limited to 140 Characters ◦ Can Be Posted Both from Computers and Mobile
Devices
Postings Are Date and Time Stamped May Have Picture / Profile Information
Available on the Twitter User’s Page
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Personalized Diaries Online◦ Same Secrets, Publicly Shared
Typically Longer Posts Than On Facebook, Twitter, and Other Sites
Posts Can Still Be Made Via a Mobile Phone and Text Message
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Heavily Used by Younger Generations◦ Also Popular With Artists to Share Music
Similar to Facebook But More of a “Locker” Than a Page in a Yearbook◦ Posting Quotes & Photos◦ “Gadgets” Like Countdowns, Quizzes, Etc.
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Social Media Site for Professionals◦ Online Resumes
Also Offers Job Searches, Job Postings, and Groups◦ Groups Offer Sharing of Information and Articles
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Users Can Upload Videos for Comment and Viewing by Third Parties ◦ Visitors Can “Subscribe” to User and Receive
Notice of New Videos
Videos Can Be Uploaded From Most Mobile Phones to a Linked YouTube Account!
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Even Companies and Other Entities Have Pages on These Sites!
Many Companies Even Have Employees Dedicated Exclusively to Social Media◦ Communicating With Consumers◦ Responding to Postings With Complaints◦ Sharing Information About the Company◦ A Form of Free Press and Advertising!
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
A Wealth of Information at Your Fingers…
So What’s the Catch?
PRIVACY CONTROLS
Copyright 2011 April L. Besl
There is a Lack of Expectation of Privacy Regarding Public Postings on Social Media◦ But Users Have Right to Select Privacy Preferences
◦ Guest v. Leis, 255 F.3d 325 (6th Cir. 2001)
Controls Change What is Accessible By Attorneys◦ Lock Twitter Accounts◦ Limit Accessibility of Facebook Profiles◦ Block Access to MySpace◦ Change What is Visible on LinkedIn
Can Change What You See on a Facebook Profile from This…
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
No Wall PostsNo Personal Info.No Photos
And It Can Be Limited Even More!
Copyright 2011 April L. Besl
Is the Information No Longer Discoverable? ◦ No! It Can Still Be Discovered if Done Properly
Expectation and Intent of Privacy Not Enough◦ Recent Indiana S. District Case, May 11, 2010:
EECO v. Simply Storage Management, LLC, 2010 WL 3446105
“Simply Locking a Profile from Public Access Does Not Prevent Discovery”
Copyright 2011 April L. Besl
Relevant Information Still Discoverable◦ Even When on Private Profiles or in Private
Messages
Example: Private Messages With Third Parties Containing Information Regarding Sexual Harassment Allegations or Alleged Emotional Distress Held to be Discoverable◦ Mackelprang v. Fidelity Nat’l Title Agency of
Nevada Inc, 2007 WL 119149 (D. Nev. 2007)
Copyright 2011 April L. Besl
Must “Establish a Factual Predicate With Respect to Relevance of the Evidence”◦ McCann v. Harleysville Ins. Co. of New York, 2010 NY
Slip. Op. 08181 (Nov. 12, 2010).
Have to Make a Showing of Adequate Relevancy for Wanting the Information!◦ “Where there is an indication that a person’s social
network sites contain information relevant to the prosecution or defense of a lawsuit…and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted.”
◦ McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010).
Copyright 2011 April L. Besl
To Determine If Something is Relevant You Need to Have Some Idea What is “Hidden” on the Site.
So The Question Is: ◦ How Do You Find Out What Is There and…
How Far Can You Ethically Go?
Copyright 2011 April L. Besl
Cannot Deceptively “Friend” Someone◦ Whether Parties or Witnesses (Expert or Lay)
Rules of Ethics Prohibit Attorneys from Making False Statements and Engaging in Dishonest Conduct
◦ Whether Directly or Through An Agent Rules of Ethics Make Lawyers Responsible for Ethical
Violations of Hired, Non-Legal Personnel if Lawyer Directed, Ordered, or Ratified the Specific Conduct
Copyright 2011 April L. Besl
Can Access “Public” Pages◦ No Ethical Rules Are Violated for Viewing Anything
That is Publicly Available
◦ No Expectation of Privacy for Publicly Viewable Information
Request Information and Communications “Related” to Facts of Case◦ Also Pictures Posted During Relevant Time
Copyright 2011 April L. Besl
Can Also Serve Social Network Provider ◦ But! May Run Into Issues Where Provider Refuses to
Turn Over Information Under Stored Communications Act Facebook Very Passionate About SCA
Stored Communications Act◦ Generally Prohibits Electronic Communications Services
from Revealing Users’ Private Messages to Outside Entities and Individuals, Absent Statutory Exception
Mixed Results in Court to These Refusals
Copyright 2011 April L. Besl
Party Discovery◦ (1) List of All Email Addresses Used by Defendant◦ (2) List of All Social Network and Video Sharing Sites
Used by Defendant With Their Member Names◦ (3) Production of All Videos “Uploaded” Online◦ (4) A Copy of All Posts Made by the Defendant
Including Comments and Replies to Other Posts◦ (5) If Applicable, A List of All Site Addresses Where
the Defendant’s Webcam Has Ever Had a Live Feed◦ (6)All Posted Online Articles Authored, In Whole or In
Part, By the Defendant
Copyright 2011 April L. Besl
Expert Discovery◦ (1) List of All Email Addresses Used by Experts◦ (2) List of All Social Network and Video Sharing Sites
Used by Expert With Their Member Names◦ (3) Production of All Videos “Uploaded” Online by the
Expert◦ (4) Copies of All Podcasts Involving the Expert◦ (5) If Applicable, A List of All Site Addresses Where the
Expert’s Webcam Has Ever Had a Live Feed◦ (6)All Posted Online Articles Authored, In Whole or In
Part, By the Expert◦ (7) List of All URLs Owned or Maintained By the Expert
Including Those Where the Expert Simply Has an Economic Interest
Copyright 2011 April L. Besl
Main Issues in Admissibility◦ Relevance◦ Authentication ◦ Hearsay
To Decide Admissibility Issues Judges Have Even “Friended” Parties to Review and Authenticate Postings ◦ E.g. Barnes v. CUS Nashville, LLC
Copyright 2011 April L. Besl
Federal Rule of Evidence 401 Definition: ◦ “Evidence Having Any Tendency to Make the
Existence of Any Fact That is of Consequence to the Determination of the Action More Probable or Less Than It Would Be Without the Evidence”
However – ◦ Beware Prejudicial Effect of Evidence Actually
Precluding Admissibility!
Copyright 2011 April L. Besl
The Issue: ◦ How Do You Prove the Online Post is the Work of
the Defendant or a Designated Agent of the Defendant?
Authenticate Via Member or User Name, Content of Post, and Date and Time Stamp on Post◦ If Defendant Does Not Deny Member or User
Name Then Authentication Should Be Simplified
Copyright 2011 April L. Besl
If Defendant Denies Member or User Name:◦ Try to Authenticate Using Email Address for
Account if Email Addresses Were Produced in Discovery
◦ May Be Essential to Obtain Entire Set of Records Associated with Member Name from Third Party Provider But You Could Run Into Opposition
Copyright 2011 April L. Besl
Authentication of Video or Audio◦ Video and Audio Clips Are Generally Easier to
Authentication Where Defendant is Present on Screen
Federal Rule of Evidence 901(b)(5)◦ Allows for Authentication of a Voice by Lay
Opinion
Copyright 2011 April L. Besl
In Some Cases You May Have to Get Around a “Hearsay” Objection◦ Often Practitioners Rely On “Statement by Party
Opponent” Exception
Federal Rule of Evidence 801(d)(2) Provides: ◦ Statement is Not Hearsay If:
(1) It is the Party’s Own Statement, In Either an Individual or Representative Capacity
(2) A Statement of Which the Party Has Manifested an Adoption or Belief in its Truth;
(3) Statement By Person Authorized by Party to Make a Statement on the Subject
Copyright 2011 April L. Besl
Social Media Can Be An Effective Tool Not Only in Cases But Also in Practice◦ But Only If Done Properly!
Use Must Conform With Local Ethics Rules◦ In Discovery & Trial◦ In Personal Use◦ In Business
Copyright 2011 April L. Besl
Review Relevant Online Presence◦ The Victim◦ First Responders◦ Medical Personnel ◦ Coroner’s Office Personnel◦ All Lay Witnesses◦ All Expert Witnesses
Anyone Who Will Testify Is Subject to Scrutiny Based on Posted Online
Cut-Off Any Harm to Credibility Ahead of Time
Copyright 2011 April L. Besl
Review Social Media Pages Early in the Case◦ Social Media Pages Change Rapidly ◦ Relevant Posts Can Be Harder to Find After Time
Passes if Poster is Very Active
Save Anything Seen Online Immediately◦ Print Pages or Save Them Using Screen Capture
(PRTSC Key)
Postings Can Be Deleted or Removed With a Simple Click of an “X” Button
Wayback Machine Can Also Be Helpful◦ Located at http://web.archive.org
Copyright 2011 April L. Besl
Review Public Profiles for Potential Jurors◦ Are They Active? ◦ Are They Already Talking About the Case?
Question Whether They Can Stay Off Sites◦ Not Only to Avoid Posts by Juror That Could Lead
to Mistrial – But Also to Avoid Opinions of Friends on Sensationalized Cases
Copyright 2011 April L. Besl
Avoid Posting False or Misleading Information ◦ Both On Your Own Sites and On Websites
◦ E.g. October 2010 Louisiana Supreme Court Reprimanded a Law Firm’s Management Committee
for Failing to Supervise a Non-Lawyer Who Had Posted Misleading Qualifications About a Member of the Firm on the Firm’s Website.
Ethical Rules Preclude Such Dissemination of False or Misleading Information
Copyright 2011 April L. Besl
Same Ethical Rules Regarding Client Solicitation and Confidentiality Apply Online◦ Do Not Get “Post-Happy” About Individual Matters
or Information
Beware Inadvertently Forming Client Relationships With Persons Online◦ Example: LinkedIn Answers
Copyright 2011 April L. Besl
Florida Ethics Opinion◦ Recent Florida Judicial Ethics Opinion Stated that
“Friending” Judges Conveys Impression of Being in a “Special Position” to Influence Judge
Doesn’t Matter If You Play Golf Every Week With the Judge◦ Only Matters How it Appears Online
Nothing Like That in Ohio or Kentucky, But Something to Keep in Mind!
Copyright 2011 April L. Besl
Beware Unprofessional Posts About Cases or Judges
Example: Florida Prosecutor Brandon White◦ Made the National News for His Postings on Facebook Regarding
“Frustrating” Trial Set to Gilligan’s Island Theme
◦ “Just sit right back and you’ll hear a tale, a tale of a fateful trial,That started from this court in St. Lucie County.The lead prosecutor was a good woman, the 2nd chair was totally awesome,Six jurors were ready for trial that day for a four hour trial, a four hour trial.
◦ The trial started easy enough but then became roughThe judge and jury confused,If not for the courage of the fearless prosecutorsThe trial would be lost, the trial would be lost.”
Copyright 2011 April L. Besl