It has become apparent that lawyers must keep informed of changes in the law, including the benefits and risks associated with relevant technology.  And, relevant technology is not limited to electronic dockets (i.e., NYSCEF, and ECF) and preserving text messages a client sends about his/her representation.  Rather, relevant technology includes today’s world of social media including Facebook, Twitter, Instagram, and Snap Chat to name a few.  Today’s blog is intended to highlight a few of the risks associated with social media.

1.  Know What Your Client is Posting on Social Media

In a 2014 case out of the Florida Court of Appeals, the daughter of the winning party posted a comment on her Facebook page commenting about the outcome of the lawsuit and the European vacation paid for as a result.  Unfortunately, the post violated the confidentiality provisions of the parties’ settlement and torpedoed the settlement.  Ouch!  Chances are, the attorneys had no idea what the daughter was up to but this case is a good reminder to know what your client is posting on social media.

2.  Don’t Spoliate, or Condone the Spoliation of Evidence

Social media posts, like any other type of “evidence” may be relevant to the lawsuit in which you are involved.  And so, like any other type of evidence, counsel may not alter or destroy relevant social media posts nor can we direct or assist others in doing so.  But, what happens when you tell your client to “clean up” his Facebook page?

In one particularly egregious example of “deceptive and obstructionist conduct,” a lawyer directed his client to clean up his Facebook page, and then ultimately deactivated the client’s account before signing a discovery response the client did not have a Facebook account. The Court levied a collective fine of $722,000 in sanctions against the lawyer and the client, and referred the attorney to the Virginia State Bar.   Other less egregious “housekeeping efforts” can also result in spoliation motions and adverse inferences at trial (see e.g. Gatto v. United Airlines Inc.,  United States District Court, District of N.J., Civil Action No.: 10-cv-1090-ES-SCM [personal injury plaintiff intentionally deactivated Facebook account during discovery, unbeknownst to his lawyer]).  In addition to the spoliation dangers presented by social media, Gatto dovetails nicely with Point I, supra, and serves as an important reminder to know both what your client is posting, and what your client may be deleting.

3.  If You Resort to Social Media to Research a Prospective or Sitting Juror, Do it Ethically

Various ethics opinions (see e.g., the NY County Lawyer Association Opinion 743 (2011) the New York City Bar Association Commission on Professional Ethics Formal Opinion 2012-2 (2012) say it is okay to research perspective and sitting jurors through social media.  However, make sure you do not communicate with the individual in the process so you don’t run afoul of the “no contact” rule.  See, e.g., Rule 3.5 of the New York Rules of Professional Conduct.  It is therefore critically important before you, a colleague or agent conduct any social media research about a juror, that you understand how the particular network operates. For example, certain jurisdictions find the automatic system-generated notice, “Katy Cole has viewed your LinkedIn profile,” to be a “communication” and therefore an improper communication with a prospective juror (or witness, or party). See previous blog post, “Ethical Information Gathering When Using Social Media.

4.  Understand the Impact of What You Share

Finally, it is important to remember that the essence of the legal profession is confidentiality and discretion.  And yet, there are many public examples of lawyers demonstrating, on social media, a lack of judgment when, for example, they share tweets or posts about clients or trial strategies.  Such behavior is really a recipe for disaster as a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation.  Therefore, a comment about even a generic/unidentified client or a case runs the risk of violating one’s duty of confidentiality to the client. See, e.g., Blogging Assistant PD Gets 60-Day Suspension for Posts on Little-Disguised Clients,” American Bar Association, May 26, 2010.

The take-away is simple: Rather than run into an ethics problem as a result of a social media post, tweet, hashtag, etc., think before you post.

Have questions?  Please contact me at kcole@farrellfritz.com.

The American Bar Association Ethics 20/20 Commission and Rule 1.1 provide that a lawyer’s duty of competence “[t]o maintain the requisite knowledge and skill, [requires] a lawyer [to] keep abreast of changes in law and its practice, including the benefits and risks associated with relevant technology.”  The New York County Lawyers’ Association Professional Ethics Committee Formal Opinion 749 (Feb. 21, 2017) echoes Rule 1.1 and discusses a lawyer’s “ethical duty of technological competence.”  Therefore, in today’s world replete with tweets, posts and handles, it is important that attorneys have some degree of social media savvy.

But what exactly does a lawyer need to know or do to be savvy when it comes to the internet of things and modern day technology?  For example, who knew there is a trend nationwide that lawyers have “a duty to Google.”  (See, e.g., Johnson v. McCullough 306 SW3d 551 [Mo. 2010] [the Court held that counsel had an affirmative duty to research jurors online]).  And, while New York has not gone so far as to require counsel to research jurors, New York does have a number of ethical opinions in place that govern how/when a lawyer may conduct such research should they choose to research a juror online.

The two opinions worth being aware of are the NY County Lawyer Association Opinion 743 (2011) (“NYCLA”) and the New York City Bar Association Commission on Professional Ethics Formal Opinion 2012-2 (2012) (“NYCBA”), which both provide that a lawyer may view the social media profile of a prospective juror provided that there is no communication with the juror.  The NYCLA Opinion further provides that a lawyer cannot seek to friend jurors, subscribe to their Twitter accounts or otherwise contact the juror.  Rather, a lawyer may only visit the prospective juror’s publicly available social media content.   In addition to lawyers’ conduct vis-à-vis prospective jurors, this same rule applies to sitting jurors.

The area rife for concern is what exactly is a “communication with a juror” under these Ethical Opinions?  And what happens if a lawyer intentionally or inadvertently communicates with a juror or prospective juror?

Use of social media by the tech-rube attorney could be rife with issues, as often times social media networks will generate an automatic notice (i.e., Katy Cole viewed your LinkedIn account).  Such notices are, under the ethical opinions, a violation of the no-communication rule.  It is therefore critically important that before you, a colleague or agent conduct any social media research about jurors, that you understand how the particular network operates.*

The ABA (Formal Rule 466 [April 2014]) reaches a different conclusion: that system generated notices are not communications. “The fact that a juror, or a potential juror may become aware that a lawyer is reviewing his internet presence when a network setting notifies juror or such, does not constitute a communication from the lawyer in violation of Rule 3.5(b).”   Below is a summary chart that may be a helpful tool when trying to determine whether you may view the social media profile of a prospective or sitting juror, the limitations of what you may/may not do and your attendant obligations, should you learn of a juror’s misconduct as a result of your viewing his/her social media content.

Pre-Trial Search:

NY County Lawyer Association

  • Lawyer may view social media profile of a prospective juror so long as there is no communication with the juror (whether initiated by the lawyer, her agent or automatically generated by the social media network) NYCLA, Formal Op. 743 (2011)
  • Lawyer cannot seek to “friend” jurors, subscribe to their Twitter accounts, send tweets to jurors or otherwise contact them. Id.
  • Lawyer may visit whatever is publicly available. Id.

NY City Bar Association

  • Lawyer may view the social media profile of a prospective juror so long as there is no communication with the juror (whether initiated by the lawyer, her agent or automatically generated by the social media network). NYCBA, Formal Op. 2012-2 (2012)

Mid-Trial Search:

NY County Lawyer Association

  • Lawyer may view the social media profile of a sitting juror so long as there is no communication with the juror (whether initiated by the lawyer, her agent or automatically generated by the social media networks). NYCLA, Formal Op. 743
  • Passive monitoring of jurors, such as viewing publicly available blog or Facebook page, may be permissible. Id.
  • Cannot make the juror aware of an attorney’s efforts to see the juror’s profiles on websites because might tend to influence the juror’s conduct in trial. Id.

NY City Bar Association

  • Lawyer may view the social media profile of a sitting juror so long as there is no communication with the juror (whether initiated by the lawyer, her agent or automatically generated by the social media network). NYCBA, Formal Op. 2012-2

Contact/Communication:

NY County Lawyer Association

  • Even inadvertent contact with a prospective juror or sitting juror caused by an automatic notice generated by a social media network is technically a violation. NYCLA, Formal Op. 743
  • Viewing the public portion of a social media profile is ethical so long as there’s no message to the account owner of such viewing. Id.

NY City Bar Association

  • Even inadvertent contact with a prospective juror or sitting juror caused by an automatic notice generated by a social media network is technically a violation.  NYCBA, Formal Op. 2012-2
  • Viewing the public portion of a social media profile is ethical so long as there’s no message to the account owner of such viewing.** Such conduct is permissible even if juror might be unaware that information is publicly available, unless it is clear that juror intended the information to be private. Id.
  • A “friend” request or similar invitation or any other form that allows the juror to learn of the attorney’s viewing or attempted viewing is prohibited communication if the attorney “was aware that her actions would cause a juror to receive such a message or notification.” If attempts to research are inadvertent or unintended, then MAY be prohibited (makes note that mens rea is not a component). Id.

Reporting Obligations:

NY County Lawyer Association

  • In the event that a lawyer learns of a juror’s misconduct due to social media research, he/she must promptly bring it to the court’s attention. Id.
  • Cannot use knowledge of juror misconduct to their advantage. Id.

NY City Bar Association

  • In the event that a lawyer learns of a juror’s misconduct due to social media research, he/she must promptly bring it to the court’s attention. NYCBA, Formal Op. 2012-2
  • Attorney must use their best judgment in determining whether a juror has acted improperly. Id.
  • Cannot use knowledge of juror misconduct to their advantage. Id.

 

* Recall the “Hustle” mortgage fraud trial in the Southern District against Bank of America Corp. A juror complained that a first-year associate on the defense team had “cyberstalked him” on LinkedIn.   In that case, U.S. District Judge Jed S. Rakoff admonished defense attorneys after a juror sent him a note complaining “the defense was checking on me on social media.”  Although “It was a good faith misunderstanding,” according to the defense counsel, it was an embarrassing and potentially costly mistake.   It is therefore important to know which systems generate automatic notices of one’s viewing activity.

** If a lawyer logs into LinkedIn and clicks on a link to a Linkedin profile of a juror, an automatic message may be sent by LinkedIn to the juror whose profile was viewed advising of the identity of the LinkedIn subscriber who viewed the juror’s profile. In order for that reviewer’s profile not to be identified through LinkedIn, that person must change his or her settings so that he or she is anonymous or, alternatively, be fully logged out of his or her LinkedIn account.

Have questions on using social media for trial research?  Please contact me at kcole@farrellfritz.com.

According to the Complaint filed in Michael Distefano and Nicole Distefano v Law Offices of Barbara H. Katsos, PC and Barbara H. Katsos, Michael DiStefano and a non-party were owners of a limited liability company that was the franchisee of three Cold Stone Creamery Inc. ice cream parlors.  In 2006, the three stores suffered financial difficulties due to an extended power failure earlier in 2006.  The Complaint further alleges that as a result, DiStefano sought legal advice from Barbara Katsos, Esq., and eventually retained her for the purposes of commencing a Chapter 11 bankruptcy proceeding.   That proceeding was ultimately withdrawn in 2010 and subsequently the DiStefanos filed the instant lawsuit. The Complaint interposes claims of legal malpractice in connection with the Chapter 11 proceeding along with claims for breach of contract and breaches of fiduciary duty.

The focus of this blog will be Katsos’ failure to preserve data relevant to the malpractice lawsuit.

Relevant Facts Per Court’s Decision

During a discovery status conference before Magistrate Judge A. Kathleen Tomlinson, counsel for Defendants advised the Court that Katsos had discarded her computer at some point prior to the malpractice litigation being commenced.  In response, the Court directed defense counsel to provide the Court with an affidavit detailing the circumstances of how the computer was discarded.   After receipt of the affidavit, the DiStefanos moved for spoliation sanctions pursuant to Rule 37.   The Court temporarily denied that motion, without prejudice, pending a hearing.  See DiStefano v Law Office of Barbara H. Katsos, PC, No. CV 11-2893, 2013 WL 1339548, at *9 (EDNY Mar 29, 2013).  Specifically, the Court found that “a hearing is necessary to explore the circumstances under which the alleged spoliation occurred” (id. at *8) (internal quotations omitted).  The Court instructed Katsos to be prepared to testify – or bring someone who could testify – as to specific topics relevant to the issue of spoliation (i.e., the document preservation undertaken when the DiStefanos instituted an adversary proceeding in March 2010).

Which Rule 37 Applies?

Before assessing the testimony presented at the evidentiary hearing, Judge Tomlinson was required to determine which version of Rule 37(e) was applicable to the motion – those in effect pre-2015 amendment? Or those currently in effect in 2017?    Citing Magistrate Judge Francis’ decision in Cat3, LLC v Black Lineage, Inc. (144 FSupp3d 488 [SDNY 2016]) (previously mentioned in my August 31, 2016 E-Discovery Update: ESI Sanctions in Federal Court During 2016 (Well, through July)), the Court noted that for cases filed before the effective date of the amendments, courts have discretion to determine which version of the Rule to apply based upon what is “just and practicable.”    Thus, Judge Tomlinson opted for the older version of the Rules based upon three considerations. First, the parties briefed the spoliation motion in 2013 based upon the former Rule 37 in.  Second, the evidentiary hearing was conducted under the tenants of former Rule 37.  And third, the conduct relevant to the motion began more than seven years before the current version of Rule 37 took effect.

Relevant Testimony At Hearing*

According to the Court, the testimony at the evidentiary hearing established the following facts:

  • While representing the DiStefanos in 2009, Katsos’ office computer crashed and a freelance computer technician told Katsos it “was bad and that nothing could be recovered”;
  • That same technician replaced the defective computer parts and drilled holes in the replaced hard drives;
  • At no time after this litigation began did Katsos take any affirmative steps to save electronic information;
  • Katsos did not issue any written instructions to her staff regarding the obligation to preserve ESI;
  • Katsos testified she was “amazed” she did not find more emails when searching her AOL accounts;
  • Katsos contacted her email provider only to learn that AOL “had no ability to save emails past the 27-day mark” absent some affirmative action by Katsos earlier;
  • Katsos’ electronic retention policies were essentially non-existent in that “everything was made in hardcopy” (and emails Katsos deemed subjectively relevant were often printed) and filed in storage cabinets;
  • There was no backup system in place to preserve electronic data;
  • Katsos was unaware of any method to set up automatic deletion of emails from her email account nor was she aware of how emails might be saved or deleted from a “sent folder”; and
  • Katsos’ office manager was not computer savvy and Katsos knew this when she hired the office manager.

Court’s Conclusion

Notwithstanding the foregoing facts, Magistrate Judge Tomlinson spared Katsos the most severe sanctions available to the Court under the pre-amendment Rule 37(e) because the Court believed that Katsos’ actions were not taken in bad faith.   Specifically, the Court noted that “[r]ather than bad faith…Katsos’ actions were occasioned by (1) her position as a solo practitioner utterly naïve about her obligations to preserve electronic evidence and (2) her total reliance upon and complete delegation to an outside consultant the responsibility for setting up and maintaining the computer system in her office.”   Moreover, the Court found that Katsos’ “utter ignorance of (i) her ESI preservation responsibilities and (ii) her efforts to save ‘substantive’ emails can be considered, to some degree, as ‘positive evidence’ of good faith.”

Ultimately, the Court concluded, “on the ‘continuum of fault ranging from innocence to the degree of negligence to intentionality’….this case falls on the spectrum between negligence and gross negligence, and closer to the former than the latter.’” Indeed, the Court found no evidence of intentional or malicious spoliation but said Katsos had “at the very least, acted with a ‘pure heart and an empty head.’”

Thus, the Court ordered Katsos to pay Defendants’ attorneys’ fees and costs incurred in connection with the spoliation motion as a sanction.

Lesson

Although the Court demonstrated leniency when imposing its sanctions, there are many important lessons to internalize from the Court’s 60-page decision.  Included among them:

  • The pre-Amendment Rules are alive and well.  Given that litigations tend to span many years, it is possible you/client could be subject to stiffer sanctions under the still-viable former Rule 37(e);
  • Ignorance of one’s preservation obligations will not insulate you from sanctions.  In fact, while Katsos’ lack of computer sophistication may have helped her when it came time for sanctions to be imposed (i.e., she was merely negligent), the fact remains she was sanctioned!  And remember – certain state’s ethics decisions expressly find that ignorance of technology is a violation of one’s duty of competence; and
  • Finally, there are resources available to help smaller firms and solo practitioners comply with their various discovery obligations – including me!  Farrell Fritz’s E-Discovery practice group is always willing to help so don’t hesitate to contact us if confronted with an ESI issue

* Memorandum and Order, dated May 10, 2017