Social Media – Not Just for Marketing

Solo and Small Firm Practice Section Conference

Pennsylvania Bar InstituteAugust, 20013

Jennifer EllisLowenthal & Abrams

Jennifer Ellis, JD Consultingwww.jlellis.net

www.lowabram.com

Slides Available

www.jlellis.net/blog/socialmedia_PBI

Today’s Discussion

• Why Social Media Matters

• Potential Business

• Available Information

• Impact on Cases

• Finding Information

• E-Discovery

• Ethics

1.15 billion

1 billion users per month

343 million

130 million4 billion photos

70 million

500 million

66 Million Blogs

225 million

33 million1.3 million businesses

216.3 million users108. 9 million blogs

Why Social Media Matters

• Numbers

• Society

• Expectations

• Data

• Impact

Potential Business

• Discuss with clients the need for:

– Wills dealing with social media accounts after death

– Employment policies

– Business policies

– Intellectual property concerns

– Privacy issues

What is Available? Everything

• People provide a lot of information online

– Intentionally

– Accidentally

• How?

– Social Media

– Advertising Trackers

– Blog Posts

• Blog Comments

Famous Last Words

I thought it was private

Social Media Can Destroy Cases

• Twitter – Client posted pictures and discussed how she was enjoying

life and becoming used to a scar

– Low verdict

• Blog & MySpace– Woman posted about belly dancing despite claiming a

serious injury

– Angry judge, loss of substantial alimony

Social Media Can Destroy Cases

• Facebook– Numerous people claim serious injuries and show

contradictory information on Facebook

– Decreases settlement strength and value of case. Sometimes results in lost cases.

Advice

• Discuss social media use with your clients

• Instruct clients to stop using social media– Explain that anything can impact a case

– Explain client cannot delete content

– Discuss privacy settings

Advice

• Review client’s social media account immediately

• Review opposing side’s social media account immediately

– Preserve relevant information

– Obey ethical rules

Researching Social Media

Finding Data Isn’t Easy

• Not like searching on Lexis or Westlaw

– Various search engines

– Privacy settings

– Legal issues

Three or Four Pronged Approach

• 1. Gather Data about Person

• 2. Find Account(s)

• 3. Review Accounts

• 4. Verify Information

1. Gather Data

• Name(s)

• Email Address(es)

• Site(s) using

• Links to accounts

• Is your client connected to the person?

2. Find the Account

• Use search techniques to find the account

–Might require offline techniques

• Cooperation of account owner

• Discovery

3. Review the Account

• Access what you can

–Privacy settings will be an issue in some cases

4. Verify

• Does the account belong to the person you are seeking?

– Compare with what you know about the person

• Pictures

• Email address(es)

• Other details

– Use other accounts or online presence to verify

• Was the account created by a third party to hurt the person?

Facebook and Curtis D. Ellis

• Curtis is suing Rami and Angelou for harm he suffered:

–Rami tried to touch Curtis’ Rawhide

–Angelou lay on Curtis’ back

The Claims

• Cannot do his job, i.e. Guarding house and person of his owner– Feels jumpy and distracted

– Unable to focus as necessary

– Having issues barking

• Substantial loss of life enjoyment – Unable to

– Eat his favorite food

– Visit his friends

– Engage in physical activity

The Plaintiff

The Defendants

Pause to Review Facebook and Privacy Settings

• Privacy settings have a huge impact on what you can see

– Friends can see a lot

–Public can only see what owner of account allows

What the Public Can See

No Information

Publicly Shared Photos

What the Public Can See

Looks Like Curtis Doesn’t Post Much

What Friends Can See

Details Curtis has shared Posts by Others

on Curtis’ Wall

Friends

What Friends Can See

Check Ins to locations

InterestsPosts and Answers

Individual Posts and PicturesChoose Who Sees What

Finding Someone

• No Connection?

–Can be difficult

Get ID Link if You Can

• Individual settings matter here too• The more private the settings

the harder to find• People can choose to be

searchable in Google, most don’t

Back to Curtis D. Ellis v. Rami & Angelou

• Curtis is friends on Facebook with Rami & Angelou (Cats)

• Cats can access his account

• What has Curtis provided to counter the claims?

Post: Concerned about Cats

Curtis explains his concerns

Picture: Angelou on Back

Angelou did in fact lay on Curtis’ back

However!

Curtis is Clearly Guarding

And Barking

And Eating Burgers

Curtis Might Have a Problem With his Case

The Problem of Popular Names -Verification

• Question

–Does Jennifer Ellis have a MySpace Account?

• What do we know about Jennifer Ellis?

– Lives in Pennsylvania

–34 to 45 years old

–Attorney

Look on Google? 3.2 Million Results

Look on MySpace? 500 Results

Learn the Tools of Each SiteMySpace Advanced Search

2 Results – No Picture

Examine Account

Follow Data Where it Leads

Examine Site for Clues

Twitter Search

Twitter Requires Operators

More Twitter Operators

YouTube

YouTube: Filter

Google+

• Must be in your circles or

• Publicly shared

• Works like regular Google search

–Google+ results integrated into regular Google results

• Bookmark search for repetition

Google+ : Filter

LinkedIn Search

LinkedIn Search

Ethics of Social Media in Cases

• Can review openly viewable data from opposing side

–Cannot friend opposing side

• Two NJ attorneys in trouble for friendingopposing client

• Numerous guidance opinions

Ethics of Social Media in Cases

• Can friend opposing witness

• Must make it clear who you are

• District attorney fired for friending witnesses, pretending to be ex-girlfriend of defendant

• Can research jurors

– Must not communicate with jurors

– Includes friending

Spoliation & Social Media

• Cannot delete account, posts, pictures or other content

–Adverse inverse for deletion – Gatto

–$700k in sanctions – Sprouse

• Disciplinary Charges

• Can:

–Change privacy settings

–Disable account

Litigation Tools

• Notice to Preserve

• Interrogatories

• Request for Production

• During Depositions

• Continuous surveillance of ethically available online content

What to Request• Immediately request preservation of all online

activities

• Obtain links to all social media accounts

–Direct links

• Obtain all email addresses used to access social media accounts

• Watch out for duplicate accounts

• Request information about all online activities

–Don’t forget blog comments

Discovery of Social Media

• General rule:

–Contradictory information viewable in social media account? Discovery granted.

• Social media sites will not help in civil cases

– Stored Communications Act

• Will provide data to government in criminal cases

– Sometimes will fight

Data Preservation

• Download Entire Facebook Account

– Facebook tool

• Access site and preserve

–Recommend record actions as take screen shots.

• Camtasia to record screen and voice

• Snagit to record screen shots

Do Not Do the Preservation Yourself

• Will become a witness in your own case

– Remember the fired district attorney

What is Competence?

• ABA is seeking to explore and implement requirements surrounding technology and ethical use in law practice.

• Pennsylvania Bar Association exploring similar issues and seeking to amend or provide comments to Pennsylvania rules.

Proposed Comment [6] to Rule 1.1

Maintaining Competence – To maintain therequisite knowledge and skill, a lawyer shouldkeep abreast of changes in the law and itspractice, including the benefits and risksassociated with technology, engage in continuingstudy and education and comply with allcontinuing legal education requirement to whichthe lawyer is subject.

Slide from Daniel Siegel, Law Offices of Daniel J. Siegel

Thank you

www.jlellis.net/blog/socialmedia_PBI

Jennifer EllisLowenthal & Abrams

Jennifer Ellis, JD Consultingwww.jlellis.net

www.lowabram.com