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.

Federal Rule of Civil Procedure 37 (along with others — Rules 1, 16, 26 and 34) was amended, effective December 1, 2015.

The amendment to Rule 37(e) was intended, in part, to ensure practitioners/litigants were fully aware of their preservation obligations, to ensure a uniformity of sanctions imposed upon parties and practitioners who failed to preserve discoverable electronically stored information (“ESI”), and to make adequate preservation a realistic goal, requiring that only “reasonable steps” be taken to preserve information. Indeed, the amendment requires a finding of intent or bad faith before sanctions can be imposed based upon spoliated information. (*)  Now, nearly a year after the enactment, it appears, from a review of the case law, that the amendment to Rule 37 (e) is effective in achieving its intended purposes.

Not only have federal court decisions involving sanctions declined since Rule 37’s amendment but, practitioners appear to be in better compliance with their preservation obligations since the amendment.

What Do the 2016 Statistics Look Like
Forty-nine federal decisions have cited Rule 37(e) since the Rule was amended. (**) Of these 49 decisions (20 of which did not apply Rule 37), thirteen decisions granted sanctions and sixteen decisions denied sanctions and/or reserved imposing sanctions. And so, sanctions were issued by courts approximately 40% of the time. Interestingly, the nature of the sanctions imposed spanned the gamut and included financial sanctions, adverse inferences, evidence preclusion, or a combination of sanctions. However, the most common sanction issued was an adverse inference.

Indeed, of the 13 decisions that granted sanctions:

• one decision entered a default judgment,
• three decisions precluded reliance upon certain evidence,
• seven decisions imposed monetary sanctions, and
• eight decisions imposed sanctions in the form of adverse inference sanctions. (***)

NB: some decisions imposed more than one type of sanction pursuant to 37(e).

Additionally, there was a variety of “lost” ESI at issue in the various decisions. Specifically,

• Twelve decisions involved unpreserved email data,
• Four decisions involved unpreserved text messages,
• Three decisions involved unpreserved portable device data,
• Two decisions involved unpreserved videos,
• Two decisions involved unpreserved phone call recordings,
• Two decisions involved unpreserved Internet browsing history,
• One decision involved unpreserved social media,
• Twelve decisions involved unpreserved non-email business data.

While 49 federal court decisions, in less than a year, have referenced Rule 37(e), that number is far fewer than in years past. In fact, according to research sources, the number of sanction decisions in 2011 totalled 150; and in 2012 that number was 120. Thus, it would appear that sanction decisions are on the decline. Moreover, given that there are 900 sitting federal judges, one could argue that sanctions have not lightly been sought since the Federal Rules amendments.

FOOTNOTES:

* Although Judge Scheindlin’s Zubulake opinions (which made it explicit that parties have a duty to preserve evidence when litigation is imminent) were authored many years ago, lawyers and parties nonetheless continued to fail to preserve evidence.

** Those 49 cases are:
CAT3, LLC v. Black Lineage, Inc., 2016 WL 154116 (S.D.N.Y. 2016)
O’Berry v. Turner, 2016 WL 1700403 (M.D. Ga., Valdosta Div. 2016)
Matthew Enterprise, Inc. v. Chrysler Group LLC, 2016 WL 2957133 (N.D. Cal. 2016)
GN Netcom, Inc. v. Plantronics, Inc., 2016 WL 3792833 (D. Del. 2016)
Learning Care Group, Inc. v. Armetta, 2016 WL 4191251 (D. Conn. 2016)
Best Payphones, Inc. v. City of New York, 2016 WL 792396 (E.D.N.Y. 2016)
Nuvasive, Inc. v. Madsen Medical, Inc., 2015 WL 305096 (S.D. Cal. 2016)
Thomas v. Butkiewicus, 2016 WL 1718368 (D. Conn 2016)
Ericksen v. Kaplan Higher Education, LLC, 2016 WL 695789 (D. Md. 2016)
BMG Rights Mgmt. (US) LLC v. Cox Comms., Inc., 2016 WL 4224964 (E.D. Va., Alexandria Div., 2016)
Brown Jordan Int’l, Inc. v. Carmicle, 2016 WL 815827 (S.D. Fl. 2016)
Core Laboratories LP v. Spectrum Tracer Services, L.L.C., 2016 WL 879324 (W.D. Okl. 2016)
Internmatch, Inc. v. Nxtbigthing, LLC, 2016 WL 491483 (N.D. Cal. 2016)
Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., 2016 WL 1105297 (S.D. Fl. 2016)
Marshall v. Dentfirst, P.C., 313 F.R.D. 691 (N.D. Ga., Atl. Div.)
Marten Transport, Ltd. v. Plattform Advertising, Inc., 2016 WL 492743 (D. Kansas 2016)
Saller v. QVC, Inc., 2016 WL 4063411 (E.D. Penn. 2016)
Martinez v. City of Chicago, 2016 WL 3538823 (N.D. Ill., Eastern Div. 2016)
Fiteq Inc. v. Venture Corporation, 2016 WL 1701794 (N.D. Cal. 2016)
Accurso v. Infra-Red Services, Inc., 2016 WL 930686 (E.D. Penn 2016)
United States v. Woodley, 2016 WL 1553583 (E.D. Mich., Southern Div. 2016)
Marquette Transportation Co. Gulf Island, LLC v. Chembulk Westport M/V, 2016 WL 930946 (E.D. La. 2016)
Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784 (N.D. Tex., Dallas Div. 2016)
Thurmond v. Bowman, 2016 WL 1295957 (W.D.N.Y. 2016)
Mazzei v. Money Store, 2016 WL 3902256 (2d Cir. 2016)
Brackett v. Stellar Recovery, Inc., 2016 WL 1321415 (E.D. Tenn., Knoxville 2016)
Bagley v. Yale Univ., 2016 WL 3264141 (D. Conn 2016)
Thomley v. Bennett, 2016 WL 498436 (S.D. Ga., Waycross Div., 2016)
Granados v. Traffic Bar and Restaurant, Inc., 2015 WL 9582430 (S.D.N.Y. 2015)
Dr Distributors, LLC v. 21 Century Smoking, Inc., 2016 WL 4077107 (N.D. Ill., Western Div. 2016)
Henry Schein, Inc. v. Cook, 2016 WL 3212457 (N.D. Cal. 2016)
Bruner v. American Honda Motor Co., 2016 WL 2757401 (S.D. Al., Southern Div. 2016)
In re Bridge Construction Services of Florida, Inc., 2016 WL 2755877 (S.D.N.Y. 2016)
Markey v. Lapolla Industries, Inc., 2015 WL 5027522 (E.D.N.Y. 2015) (Tomlinson, U.S.M.J.)
Dao v. Liberty Life Assurance Co. of Boston, 2016 WL 796095 (N.D. Cal. 2016)
Zbylski v. Douglas County School District, 2015 WL 9583380 (D. Colo. 2016)
Redwind v. Western Union, LLC, 2016 WL 1732871 (D. Or. 2016)
Stinson v. City of New York, 2016 WL 54684 (S.D.N.Y. 2016)
Whitesell Corp. v. Electrolux Home Products, Inc., 2016 WL 1317673 (S.D. Ga., Augusta Div. 2016)
Vay v. Huston, 2016 WL 1408116 (W.D. Penn. 2016)
Hammad v. Dynamo Stadium, LLC, 2015 WL 6965215 (S.D. Tex., Houston Div. 2015)
Official Committee of Unsecured Creditors of Exeter Holdings, Ltd. v. Haltman, 2015 WL 5027899 (E.D.N.Y. 2015) (Tomlinson, U.S.M.J.)
United States v. Woodley, 2016 WL 2731186 (E.D. Mich., Southern Div.)
Grove City Veterinary Service, LLC v. Charter Practices Inter., LLC, 2015 WL 4937393 (D. Or. 2015)
United States v. Safeco Ins. Co. of America, 2016 WL 901608 (D. Idaho 2016)
Coale v. Metro-North Railroad Co., 2016 WL 1441790 (D. Conn. 2016)
Fleming v. Escort, Inc., 2015 WL 5611576 (D. Idaho 2015)
Kissing Camels Surgery Center, LLC v. Centura Health Corp., 2016 WL 277721 (D. Colo. 2016)
McIntosh v. United States, 2016 WL 1274585 (S.D.N.Y. 2016)

*** Of the 19 cases in which sanctions were not granted, the reasons for denying sanctions varied. Indeed, courts declined to impose sanctions because the party “took reasonable steps” to preserve data; party was not harmed by the fact the ESI was missing; there was insufficient evidence of bad faith; and the missing data was “restored through other methods.”