This ABA TechShow presentation is for lawyers and companies who want to have a better understanding of the increasingly important role that social media plays in litigations around the country (and the world). Counsel need to understand that social media is a game changer, and a powerful tool that can be harnessed to win (or lose) a case. For additional information on this presentation, please contact Antigone Peyton (antigone.peyton@cloudigylaw.com).

1. April 11-13, 2011
www.techshow.com
Litigators Toolbox:
Session Title
Social Media
Presenters
Presenters
Judge Herbert Dixon
Sharon {Name}
Nelson
Antigone{Name}
Peyton
PRESENTED BY THE
April 11-13, 2011
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2. Social Media
April 11-13, 2011
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3. Social Media
• Internet forums
• Weblogs
• Social blogs
• Microblogging
• Wikis
• Podcasts
• Pictures
• Video
• Ratings
• Social bookmarking
April 11-13, 2011
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4. Facebook Stats
• April 2011: Nearly 600 million active
Facebook users (50% daily users)
• Over 100 million w/public information
• Complete Facebook profile contains
over 40 pieces of information (+wall
posts & status updates)
• 2/3 of comScore s Top U.S. websites
integrated
April 11-13, 2011
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5. Some Global User Stats
• Twitter – 190 million
• LinkedIn – 75 million
• Plaxo – 40 million
• MySpace – 65 million
April 11-13, 2011
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6. Social Media: Advice For Clients
• The President s Advice:
Well, let me give you some very
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.
Obama warns U.S. teens of perils of Facebook, Sept.
8, 2009 (Reuters).
April 11-13, 2011
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7. How Long Does It Last?
• Approximately forever, so THINK before you
post
• Twitter keeps all tweets
• April 14, 2010--Library of Congress
announced that it is acquiring entire public
archive of Tweets
• Facebook keeps posted info until deleted
items are overwritten
• You can t control what others do with your
posts/photos
April 11-13, 2011
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8. Deleted Does NOT
Mean Deleted
• Computer forensics can recover data until
overwritten
• May exist on social media servers until
overwritten
• Someone else may have reposted or kept
the data (e.g., wayback machine )
April 11-13, 2011
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9. Social Media In Court
• Criminal proceedings-
sentencing, alibi
• Evidence to discredit
witness/impeachment
• Investigation tool-
authorities, lawyers,
and jury consultants
April 11-13, 2011
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10. The Power Of
Social Media Evidence
• American Academy of
Matrimonial Lawyers
– 80% of members have
seen a sharp increase in
SM evidence
– One in five cases now
involves FB evidence
– In the U.K. 1/5 of divorce
petitions cite FB
April 11-13, 2011
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11. Regular Use Of Social Media
• Criminal law
• Employment law
• Personal injury law
April 11-13, 2011
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12. Its Not Yours Only
• Privacy preferences give way to
liberal discovery rules in litigation
• Many rights are waived upon joining,
or by default settings
• Information may be subject to
subpoena
• Little to no expectation of privacy
• Leduc v. Roman (Quebec)-private
Facebook page still discoverable
April 11-13, 2011
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13. Finding Evidence On Social
Networking Sites
• The old days: little privacy, you could mine at
will
• Today: the majority of people understand
privacy settings
• Always check – many accounts are still open
• A friend might always provide info
• Deception is obviously unethical (on the part of
the attorney or her staff)
• If someone else deceives (without your
involvement), it will probably come in
April 11-13, 2011
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14. Social Media Ethics
• Phila. Bar Op. 2009-02 (3/2009)
• Lawyer had 3rd party send friend
request to adverse witness
• Lawyer cannot do that for purposes of
searching for otherwise private
information on Facebook page
• Rules regarding non-lawyer assistants
apply to third-party actions
• Concerns re: dishonesty, fraud, deceit
or misrepresentation
April 11-13, 2011
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15. New York Bar Association
• (Sep. 24, 2010)
Ethics opinion
• Attorneys can
comb through
PUBLIC areas of
social media sites
April 11-13, 2011
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16. Service of Process
• London High Court allowed service of a
court order to an anonymous blogger
over Twitter
• Australian court allowed service of a
default judgment through Facebook
• 9th Circuit ordered e-mail service
April 11-13, 2011
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17. How To Get
Social Media Evidence
• Civil subpoenas were long honored
• Now ISPs are citing the ECPA and the
SCA and challenging subpoenas
• 18 U.S.C. Sec. 2702-2703 – can t
divulge the contents of e-mails or other
electronic records
• Some exceptions for law enforcement
April 11-13, 2011
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18. What Are Contents?
• It should be the substance of a
message
• Attorneys have gotten odd responses
– Times of connections, IP addresses are
content
– When challenged SM sites have backed
down
April 11-13, 2011
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19. Leading Case
• In Re Subpoena Duces Tecum to AOL, LLC, 550 F.
Supp. 2d 606, 2008 U.S. Dist. LEXIS 39349 (E.D.
Va. April 18, 2008)
• ECPA prohibits an e-mail service provider from
producing customer s e-mail in response to a civil
subpoena because it is not a disclosure exemption
under the Act
April 11-13, 2011
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20. SCA vs. Social Media
• Crispin v. Christian Audigier, Inc.
(C.D. CA. May 26, 2010)
• First case to hold that SCA applies to
social networking sites
• Held that messages and comments
visible to a restricted set of users
were private
• Artist Crispin claimed Ds violated
copyright – Ds wanted all MySpace
and Facebook references to Ds
• Trying to fit facts into SCA (1986 law)
– a very bad fit
April 11-13, 2011
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21. If You Sue…Your Life Is
An Open Book
• EEOC v. Simply Storage
Management (S.D. In.
May 11, 2010)
• Permitted discovery of all
relevant SM data whether
or not it was private
• EEOC had sued on
behalf of two women
claiming sexual
harassment
• Defendant employer
sought the info
April 11-13, 2011
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22. Looking Ahead
• The information will
probably still be
discoverable and the
respondent will have to
provide it
• If they don t, attorneys
will ask court to compel
discovery
April 11-13, 2011
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23. How to Subpoena
Facebook
• http://www.facebook.com/
help/?safety=law
• Facebook urges parties to
resolve their discovery issues
without involving Facebook
• Stored Communications Act, 18
U.S.C. § 2701 et seq. prohibits
disclosure of all but basic
subscriber info
April 11-13, 2011
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24. FB & User Both Have Access
• Unless user has terminated account,
unknown how long data retained (was 90
days, believed to be less now)
• You must serve a valid California or
Federal subpoena on Facebook. Out-of-
state civil subpoenas must be
domesticated in California. Facebook s
registered agent for service of process:
Custodian of Records, Facebook, Inc.
c/o Corporation Services Company
2730 Gateway Oaks Drive
Suite100
Sacramento CA 95833
April 11-13, 2011
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25. What Does It Cost?
• $500 for each
account
• $200 for expedited
response
• 30 days response
time
April 11-13, 2011
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26. User Consent Forms
• Obsolete for Facebook, should work
for any other sites
• Pursuant to a Rule 34 request for
production of relevant, non-privileged
material
• Material produced to user or attorney
for review before production
April 11-13, 2011
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27. April 11-13, 2011
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28. April 11-13, 2011
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29. Downloading An Account
• Facebook will prepare download and
send a link via e-mail to the user
• All elements of the site – wall, photos,
etc. will download as a zip file
• User s counsel will screen for relevant,
non-privileged info prior to production
April 11-13, 2011
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30. Danger Of Spoliation
• Attorneys routinely advising
deletions (prior to litigation
holds)
• Client often deletes after
litigation holds
• Preservation of evidence letters
critical
• If spoliation suspected,
computer forensics may be
needed
April 11-13, 2011
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31. Preserving Social Media Evidence
• Generally less than perfect options
available
• Screenshot or PDF
• Someone will have to authenticate
• Can use GoToMeeting, CamStudio or
other programs to record the process
• Inexpensive to use third-party expert
April 11-13, 2011
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32. Evidentiary Issues
• St. Clair v. Johnny s Oyster & Shrimp,
Inc.
– Any evidence procured from the Internet is
good for almost nothing
• Lorraine v. Markel American Insurance
Co.
– Counsel must be prepared to deal with the
evidentiary issues associated with
admissibility
April 11-13, 2011
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33. Evidentiary Issues
• FRE 901
• 901(b)(1). Testimony of witness with
knowledge.
• 901(b)(3). Comparison by the trier of fact or by
expert witnesses with a specimen.
• 901(b)(4). Distinctive characteristics and the
like.
• 901(b)(7). Public records.
• 901(b)(9). Evidence produced as a result of an
accurate process or system.
April 11-13, 2011
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34. Evidentiary Issues
• FRE 902: SELF AUTHENTICATION
• Three of the rules have been used in
the courts to authenticate ESI:
• 902(5). Official publications.
• 902(7). Self-authentication by
inscriptions, signs, tags or labels.
• 902(11). Authentication of regularly
conducted business.
April 11-13, 2011
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35. Facebook Authentication
• Notarized declarations as
to validity provided (an
extra $100)
• But no witnesses for trial
or depositions
• Will notify user of
subpoena to allow time for
motion to quash
April 11-13, 2011
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36. How Do You
Authenticate?
• Smart lawyers
– Requests for admission
– Stipulations
• Many courts have
common sense rule: If
the other side doesn t
object, it comes in
April 11-13, 2011
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37. Authentication
• Did you post this?
• Did you see this post?
• Context and content
can authenticate
• Expert testimony
• Computer forensics if
data was deleted
April 11-13, 2011
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38. Snitches Get Stitches:
U Know Who U Are!
• Griffin v. Maryland (Ct. of App. M.D. May
27, 2010)
• Murder case - D s girlfriend appeared to
threaten a witness on MySpace
• Site maintained under pseudonym
• Prosecution sought to intro to rehabilitate
witness who changed testimony
• Had photo of D and girlfriend
• Page referred to D as Boozy
• Court said site could be authenticated
from content and context
April 11-13, 2011
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39. Prosecutors Embracing
iJuror Social Media
• Cameron County TX
• Searching SM sites of
prospective jurors
• Googling them
• Keeping up with the
defense in jury
investigations
April 11-13, 2011
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40. Voir Dire Trends
• Wall Street Jrnl. (Feb. 22, 2011)-
Prosecution and defense lawyers
probing jury pool
– Religion
– Activities
– What TV they watch
– Opinions they hold
– But much is now private
– Useful to know that someone is
married and loves GLEE?
April 11-13, 2011
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41. Save the Date
ABA TECHSHOW 2012
March 29-31, 2012
Hilton Chicago
April 11-13, 2011
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