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.

On October 4, 2016, District Judge Jon S. Tigar issued an opinion every federal court practitioner should read (Rodman v Safeway, Inc., [11-cv-03003] [N.D. Ca.] [JST]).  The decision serves as an important reminder that counsel has an obligation to assist their client when identifying and collecting  electronic documents responsive to discovery demands.  Indeed, it is not sufficient or defensible to have a non-IT savvy individual search electronic media for responsive materials and to do so without meaningful oversight and involvement of counsel.

The Rodman case is a certified class action for breach of contract.   Defendant, Safeway, Inc. (“Safeway”), entered with customers an online contract that determined pricing and delivery fees associated with online grocery shopping.  The essence of the allegations before the Court were that Safeway breached the contract by charging prices on Safeway.com that were materially different than those charged (for the same items) in the physical store from which the groceries were selected and delivered.

After multiple summary judgment motions, one issue remained for trial: whether class members who registered for the delivery service prior to 2006 agreed to the same contract as class members who registered after 2006?    As a result of this remaining issue, class representative Rodman requested documents showing the terms and conditions and registration process in effect from 2001 through 2005 (“Special Terms”).  On March 9, 2015, Safeway responded to this discovery demand advising that it did not have access to the Special Terms and subsequently reported (on April 7, 2015) that it could not locate any documents responsive to this request.

Seven days before trial, Safeway produced 10 highly responsive documents related to Safeway’s Special Terms.  These documents were found on a “legacy” hard drive and were found by Safeway’s Director of Marketing – Steve Guthrie – when he was prepping for the trial (more than 5 months after discovery closed).   Guthrie – who was designated to testify concerning all steps taken to locate documents and persons knowledgeable about the pre-2006 processes and Special Terms, previously testified that he had searched the legacy hard drive using “key word searches” and did not locate any responsive documents.    

Given the highly relevant nature of the documents produced, the Court continued trial for two months and permitted Plaintiff to take additional discovery.  Eventually, a judgment was entered against Safeway. That judgment is now on appeal before the Ninth Circuit.  

On April 6, 2016, however, and as is relevant to this blog, Rodman filed a motion for discovery sanctions.  Judge Tigar’s decision, granting in part and denying in part the sanction motion, entered on October 4, 2016, imposed a sanction in the amount of $516,484.00 against Safeway.

LEGAL STANDARD FOR DISCOVERY

In reaching its decision, the Court began by reciting the standard under FRCP 26(g) – that a “signing attorney [must] certify that a reasonable inquiry has been made with respect to the factual and legal basis for any discovery request or response.”  The Court further found that when an attorney makes a certification that violates this rule and does so without “substantial justification,” the Court “must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.” (Rule 26(g)(3)). (emphasis added).

Plaintiff moved for sanctions based upon Safeway’s false statement that no documents responsive to his demand for the pre ’06 Special Terms existed.  Safeway responded that sanctions were not warranted because it made a reasonable inquiry into the basis for its response, including interviewing individuals, and searching the legacy drive for documents.  Safeway argued these steps were comprehensive and thus reasonable.

The Court disagreed and concluded that Safeway’s initial search of the legacy drive was unreasonable for at least three reasons.

First, the Court found “there [was] no indication that Safeway’s counsel guided or monitored Mr. Guthrie’s search of the legacy drive in any significant way.”  Rather, counsel relied on Guthrie’s own determination and seems not to have questioned the thoroughness of Guthrie’s search.  The Court found this “lack of guidance and oversight sufficient to “support” a finding of unreasonableness.”

Second, because there is no evidence that Guthrie had any experience in conducting searches of large document repositories, such as the approximately 300 GB legacy drive, the search was unreasonable.  Indeed, the Court found that Safeway’s counsel could have, but failed to, request a member of Safeway’s IT department (or anyone else familiar with modern e-discovery) conduct the search.

Third, the evidence indicates the search was objectively unreasonable. For example, this was not the case of Safeway being asked to locate the proverbial needle in a haystack.  Rather, many of the electronic file folders (now known to contain the responsive documents) had names like, “Special Terms,”  and “OldSiteDesign” – names that should have signaled to anyone conducting an adequate search that the folder was likely target rich.  Instead, Mr. Guthrie searched for the key words only in a file’s name (rather than in the body of, or content of the file or folder).  This too, shows counsel failed to guide, monitor or inform what Guthrie did.

Clearly if we are to internalize any lesson from this decision it is the obligation of counsel to actively participate in the discovery process.  We cannot allow our client(s)/clients’ employees to collect responsive information in a vacuum.  Rather, we must actively participate in the process and we must secure the expertise of individuals steeped in modern e-discovery when we or client lacks the expertise.  In fashioning the one half-million dollar sanction, the Court found it telling that a substantial part of the legal work Plaintiff sought the cost of performing (additional discovery, unnecessary trial preparation.) would have been avoided had a reasonable search – meaningfully informed by counsel – been conducted on the legacy drive.

 

In Kan-Di-Ki, LLC v. Suer (2015 WL 4503210 [Del. Ch. July 22, 2015]),  a case involving breach of contract claims, the plaintiff alleged that the defendant engaged in suppression and spoliation of evidence when the defendant deleted three sets of text messages and email chains pertaining to the foreseeable litigation between the parties. Plaintiff came to learn of the missing documents because it had received many of them from non-parties during discovery.  In response, the defendant argued that he had lost his phone and had no means of reproducing the text messages (sounds a lot like Tom Brady!) and the emails were received and deleted in the ordinary course of correspondence before he had a duty to preserve them.

The court granted plaintiff’s motion for sanctions due to the defendant’s suppression and spoliation of evidence.  Specifically, the Court reasoned that the defendant was reckless with respect to his duty to preserve relevant emails and documents, as the defendant had reason to anticipate litigation long before he deleted the emails at issue. Indeed, in connection with an earlier pending matter, defendant represented to the court that no relevant materials including these emails – were subject to “manipulation or even just being forgotten.”  The court also found that the defendant engaged in spoliation with regards to the lost text messages, as the court had previously alerted the defendant to the need to retain and potentially produce relevant documents in preparation for litigation, which included the text messages on the lost phone.  The Court imposed limited and specifically tailored adverse inferences and awarded Plaintiff’s attorney’s fees and expenses related to the motion for sanctions.