Legal Series: Ethical Issues in Attorney Use of Social Media LIVE Webcast

Speaker Firms and Organization:

Sponsored By:

Presented By:

Alston & Bird LLP
Colin K. Kelly
Partner
Trial Partners, Inc.
Mark R. Phillips, Ph.D.
Vice President and Senior Consultant
Blank Rome LLP
Jeffrey N. Rosenthal
Attorney
Scarab Consulting
Larry Lieb, ACE, CCA
Chief Innovation Officer

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Friday, January 31, 2014

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Sponsored By:

With nearly 800 attorneys, Alston & Bird is a leading national AmLaw 50 firm.
The firm's core practice areas are intellectual property, complex litigation,
corporate and tax, with national industry focuses in energy and sustainability,
health care, financial services and public policy. The firm has built a reputation
as one of the country's best employers, appearing on FORTUNE magazine's
ranking of the "100 Best Companies to Work For" 15 consecutive years, an
unprecedented accomplishment among law firms in the United States. The
firm has offices in Atlanta, Brussels, Charlotte, Dallas, Los Angeles, New
York, Research Triangle, Silicon Valley, and Washington, D.C.
www.alston.com

Trial Partners, Inc. is a national trial and jury consulting firm, headquartered in Los Angeles,
dedicated to offering the highest quality services in a timely, cost-effective, and confidential
manner.
The depth of experience and skill that Trial Partners brings to its clients is rare. Our consultants
have worked on over 5,000 cases and we have assisted in over 1,500 jury selections. We have
worked in multiple counties in 43 states, plus in the District of Columbia and the Commonwealth
of Puerto Rico.
The consultants at Trial Partners are recognized as leading authorities in jury psychology and
legal strategy in all types of cases and jurisdictions. Our team of seasoned professionals
combines outstanding academic credentials, extensive practical experience, and a track record
of good results. We have a first-rate reputation throughout the country because we listen to our
clients, we think about their issues, and we act effectively to achieve their objectives.
We provide expert assistance in the formulation and communication of effective case themes
and strategies in civil and criminal matters, and in federal and state courts around the country.
The firm focuses on complex matters involving major corporations in every industry,
governmental entities, startups, and individuals. The firm's clients include many Fortune 100
companies and prominent individuals.

6

Sponsored By:

Blank Rome LLP is one of America’s largest law firms. With nearly
500 attorneys serving clients around the globe, Blank Rome is an
international law firm representing businesses and organizations
ranging from Fortune 500 companies to start-up entities. Blank Rome
helps its clients in all aspects of their businesses. Blank Rome also
regularly represents pro bono clients in a wide variety of cases and
matters. More information about the Firm is available at
www.BlankRome.com.

Scarab Consulting enables corporate legal department and law
firm clients to focus on practicing law, rather than on managing
discovery. For over 10 years, Scarab has been providing clients
with customized solutions that encompass the full spectrum of the
Electronic Discovery Reference Model (EDRM) from identification
and preservation of data, to processing, data analytics, through to
hosted review and production.

7

Media Partner:

bestattorneysonline.com, a premium service provided by bestattorneysonline.com LLC, started in 2009, ranks law
firms through research and evaluation to identify the most respectable and dedicated law teams in the United States.
Our goal is to provide our users with a new way to locate and contact an attorney or a law firm while providing firms a
way to get their image out and into the open. We advertise and provide access to the best law firms around the country
and in specific areas and also list a directory showing many opportunities for a client to get in touch with legal help.

8

Brief Speaker Bios:
Colin K. Kelly
Colin Kelly is a partner in the firm's Products Liability and Litigation & Trial Practice Groups. He focuses his practice in the areas of
product liability and toxic torts and has bet-the-company crisis management experience. Colin has a history of trying difficult cases in
difficult places: over the past four years, he has tried multiple cases to verdict for a prominent international chemical company and is
serving as National Trial Counsel for a large auto-related product manufacturer. Recently served as national coordinating counsel to a
green technology company involved in consumer product-related lawsuits throughout the US and Canada. Colin has litigated complex
matters for more than 10 different Fortune 500 companies and has prepared cases for trial in 15 different states. Colin is frequent
speaker and author on some of the practical ways that lawyers can ethically use social media to benefit clients before, during and
after trial.
Mr. Kelly can be reached at colin.kelly@alston.com

Dr. Mark R. Phillips is the vice president of Trial Partners, Inc. and a senior trial consultant. His expertise includes jury selection, jury
decision making, and witness preparation. His firm conducts all types of jury research, including mock trials, focus groups, post-trial
juror interviews, and community attitude surveys. Dr. Phillips consults in high-stakes and high-profile civil and criminal matters in state
and federal jurisdictions throughout the country. He has published research on jury decision making, jurors' perceptions of minority
attorneys, and eyewitness memory. His clients include many Fortune 100 companies, government entities, and prominent individuals.

► For more information about the speakers, you can visit:

http://www.knowledgecongress.org/event_2014_Ethical_Issues.html

9

Brief Speaker Bios:
Jeffrey N. Rosenthal is an attorney with Blank Rome LLP. He concentrates his practice in the areas of complex corporate and
commercial litigation, and specializes in cases involving technology. He serves both corporate and individual clients in a wide variety
of industries including computer software, banking and securities/shareholder actions. Since 2012, Mr. Rosenthal has written the
Cyberlaw column for The Legal Intelligencer—America’s oldest daily law journal—regularly publishing articles on the non-traditional
uses of social media and its implications for modern practice. He has also lectured on the topic of alternative dispute resolution.
Mr. Rosenthal can be reached at Rosenthal-j@blankrome.com.

Larry Lieb has worked as a subject matter expert in the field of computer forensics and electronic discovery since 1998. Larry's
practice focuses on the application of best practices and technology to maximize the limited dollars parties involved in litigation have
available for substantive legal work while minimizing wasted expense in discovery. Larry can analyze, report and testify on evidence of
activities that have taken place using computers and smartphones.

► For more information about the speakers, you can visit:

http://www.knowledgecongress.org/event_2014_Ethical_Issues.html

10

While the use of social media provides an array of opportunities for companies to market their services
and connect with other companies and potential clients, attorneys (both in-house and outside counsel)
have unique ethical duties that pose significant risks and require additional practical restraints on
unfettered and unfiltered social media use to benefit clients.
This course offers in-house counsel & attorneys the opportunity to be equipped with a better
understanding of ethical issues surrounding social media information, advertising, and use by attorneys.
The Knowledge Group has assembled a panel of distinguished practitioners and thought leaders who
will share their expertise on how to approach the issues surrounding the subject. The panelists will
examine the pros and cons of social media and will also share practical guidance on how to effectively
use social media while preventing potential pitfalls.

11

Featured Speakers:

Colin K. Kelly
Partner
Alston & Bird LLP

Attorney
Blank Rome LLP

Vice President and
Senior Consultant

Scarab Consulting

12

Agenda

I.

Ethical Use of Social Media During Trial (30 mins)

II.

Practical Tips on Using Social Media at Trial (15 mins)

III.

Is it Ethical to be Facebook “Friends” with a Judge? (25 mins)

IV.

Civil Discovery of Social Media: Give Me All Your Tweets! (35 mins)

13

Colin K. Kelly
Partner
Alston & Bird LLP

Ethical Use of Social Media During Trial

14

Colin K. Kelly
Partner
Alston & Bird LLP

The Social Media Revolution

15

Colin K. Kelly
Partner
Alston & Bird LLP

Social Media Revolution – Facebook

16

Colin K. Kelly
Partner
Alston & Bird LLP

The Current Trend is Not Whether to Use Social Media During Trial but How?
•Twenty-five percent of all Facebook
users do not use any privacy settings,
which is why social media searches
often bear fruit in jury selection. Social
Media Statistics and Facts 2012, GOGLOBE.COM (Oct. 30, 2012).
•How far can a lawyer go in researching
jurors likes, dislikes, pictures, opinions
and beliefs without crossing the ex parte
ethical line?

17

Colin K. Kelly
Partner
Alston & Bird LLP

Voir Dire or Voir Google?

“Jury duty 2morrow. I may get 2 hang someone … can’t wait …”
“Guinness for lunch break. Jury duty ok today.”
These are real Facebook postings from a juror in a federal tax evasion case. See United States v.
Ganias, 2011 WL 4738684, at *2 (D. Conn. Oct. 5, 2011).

18

Colin K. Kelly
Partner
Alston & Bird LLP

A Brief History on Social Media Research During Voir Dire
•

Less than a decade ago many courts believed
that scouring the internet for information on
potential jurors was an invasion of privacy.
In 2006, a Federal Court made headlines when
it banned internet inquiries into prospective
jurors in a highly publicized government
corruption trial. See United States v. Sorich,
427 F. Supp. 2d 820 (N.D. Ill. 2006) aff'd, 523
F.3d 702 (7th Cir. 2008).

•

2010: In Carino v. Muenzen, a New Jersey court
granted a new trial where one of the attorneys
was barred from using his laptop during jury
selection. Carino v. Muenzen, 2010 N.J. Super.
Unpub. LEXIS 2154, at *27 (N.J. Sup. Ct. App.
Div. Aug. 30, 2010).
19

Colin K. Kelly
Partner
Alston & Bird LLP

Current Ethical Framework For Juror Investigation (Social Media)
•

Model Rule 3.5: [a] lawyer shall
not: (a) seek to influence a judge,
juror, prospective juror or other
official by means prohibited by
law; [or] (b) communicate ex parte
with such a person during the
proceeding unless authorized to
do so by law.”

20

Colin K. Kelly
Partner
Alston & Bird LLP

Other Guidance?
•

New York City Bar Association formal opinion –Issued a formal opinion in 2012 that supports attorney
access to social media websites for juror research “as long as no communication occurs between the
lawyer and the juror as a result of the research.” Formal Op. No. 2012-02.

•

Philadelphia Bar Association—Issued guidance that attorneys cannot use third parties to “friend”
witnesses or jurors on social media that a lawyer himself could not friend or contact. See Op. 200902, Philadelphia Bar Association Professional Guidance Committee (March 2009).

•

Other bar associations hold internet research by attorneys is ethical, so long as it there is no direct
communication with jurors.
•
Ethics Op. No. 843, New York State Bar Association (Sept. 10, 2010);
•
Formal Op. No. 743, New York County Lawyers’ Association (May 18, 2011);
•
Formal Op. No. 2013-189, Oregon State Bar Association; and
•
Legal Ethics Op. No. 2011-2, San Diego County Bar Association (May 24, 2011).
21

Colin K. Kelly
Partner
Alston & Bird LLP

Juror Misconduct Involving Social Media Use
•

Juror’s Facebook page was configured to be
accessible by the public at the time, and the media
discovered a status posted in jury deliberations
stating, “Stay tuned for the big announcement on
Monday everyone!” On appeal, the court affirmed
the conviction, noting that all the comments online
“were nothing more than harmless ramblings having
no prejudicial effect.” United States v. Fumo, 103
A.F.T.R.2d 2009-2727, at *64 (E.D. Pa. June 17,
2009).

•

Arkansas capital murder conviction was overturned
due to social media misuse by a juror during trial.
See Dimas-Martinez v. State, 385 S.W.3d 238 (Ark.
2011). Juror at issue tweeted repeatedly during
trial and deliberations, even after receiving a
reprimand from the bench.
22

Vice President and
Senior Consultant

Practical Tips on Using Social Media at Trial

23

Vice President and
Senior Consultant

What types of information should attorneys be monitoring?
•
•
•
•
•
•
•

Likes and Dislikes
Friends and Followers
Education
Employment
Social media activity level
Personal blogs
Websites

24

Vice President and
Senior Consultant

What common sites should attorneys be monitoring?

•
•
•
•

Facebook
Twitter
LinkedIn
Importance of
browsing
anonymously
25

Vice President and
Senior Consultant

What tools are available to attorneys?

• Jury Pad (or other
iPad/iPhone
applications)
• Search engines
(Google, Bing, etc.)
26

Vice President and
Senior Consultant

What other steps are available at trial?

• Petition court to give
detailed jury instructions
on social media
• Monitor jurors social
media use throughout trial
and deliberations

27

Vice President and
Senior Consultant

Jurors are more tuned into media than ever before,
especially social media…

28

Vice President and
Senior Consultant

And they have trouble “disconnecting” from social media…

29

Vice President and
Senior Consultant

Actual Question on Juror Questionnaire
“Will you have any trouble following the Court’s instruction to avoid doing any independent research
about anything or anyone connected to this case, and to avoid speaking to anyone about this case,
even on the Internet?”

30

Vice President and
Senior Consultant

Jurors cannot resist the temptation to research a case despite the
Court’s instruction to avoid doing so…and the problem is getting worse

31

Vice President and
Senior Consultant

Actual Juror Quotes
●“Yes,

I would have trouble not doing independent research about the case…but I wouldn’t talk to anyone
about it, though.” (October 2010)
●“I

will try my best, but I think it’s an unrealistic expectation.” (August 2011)

●“Intoxication
●“As

sometimes makes me say things I should not be saying.” (August 2011)

a juror, I need to know the history of the case.” (May 2012)

●“I

believe I will feel it necessary to do my own investigating, as I see the courtroom as a ‘show’ and not
actual information. The better I could inform myself, the better I could decide.” (May 2012)

32

Vice President and
Senior Consultant

Actual Juror – Facebook Page

33

Vice President and
Senior Consultant

Actual Juror – Facebook Page

34

Vice President and
Senior Consultant

Addressing the Risks of Social Media During Jury Selection
●

Ask judge to provide strong oral admonishment before jury selection using simple, plain language
●
Explain why it is important (e.g., the need for a fair trial based solely on evidence presented
in court)
●
Explain the consequences of using social media during the trial (e.g., personal fines, being
held in contempt of court, causing a mistrial)

●

Counsel and/or the judge should explore jurors’ use of social media during voir dire
●
Example: “How many of you Tweet or log on to your Facebook account on a daily basis?”
●
Try to engage in interactive dialogue with jurors about the problems of social networking
during jury service

35

Vice President and
Senior Consultant

Addressing the Risks of Social Media During Jury Selection (continued)…
●

If a juror questionnaire is used, provide a written admonishment in more than one place on the juror
questionnaire

●

The following standard juror questionnaire used in all asbestos cases in Los Angeles, Orange, and
San Diego Counties has an admonishment in three places

36

Vice President and
Senior Consultant

LAOSD JQ – Cover Page (1st Admonishment)

37

Vice President and
Senior Consultant

LAOSD JQ – Page 7 (3rd Admonishment)

38

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40

Colin K. Kelly
Partner
Alston & Bird LLP

Attorney
Blank Rome LLP

Is it Ethical to be Facebook “Friends” with a Judge?

41

Attorney
Blank Rome LLP

Why Can’t We Be Friends, Your Honor?
•

What is it about judges and lawyers as online “friends” that raise such concerns?
–

When a judge creates an online connection with a lawyer it places that individual in a
“special class” of lawyers who are designated as that judge’s “friend.”

–

As contrasted with lawyers who choose not to ask the judge to accept them as a “friend” (or who
do not participate in social media), this former group appear to the public as being in a “special
relationship” with the judge.

42

Attorney
Blank Rome LLP

•

ABA Formal Opinion 462 (Feb. 21, 2013)
– Judge’s Use of Electronic Social Media.
• Defined electronic social media (“ESM”) as referring to any internet-based social
networking site that “require[s] an individual to affirmatively join and accept or reject
connection with a particular person.”
• Gives judges wide latitude to engage in online behavior within existing Model Code of
Judicial Conduct.
– “A judge may participate in [ESM], but as with all social relationships and contacts,
a judge must comply with the relevant provisions of the Code . . . and avoid any
conduct that would undermine the judge’s independence, integrity, or impartiality, or
create an appearance of impartiality”

43

Attorney
Blank Rome LLP

ABA Formal Opinion 462
•

ABA cautioned judges that ESM connections may “rise to the level of [a] social relationship or the
perception of a relationship that requires disclosure or recusal.”
–

•

Judge who has an ESM connection with a lawyer with a pending or impending matter must
evaluate whether to disclose it prior to or at the initial appearance before the court.
• “In this regard, context is significant.”

“Because of the open and casual nature of ESM communication, a judge will seldom have an
affirmative duty to disclose an ESM connection. [But i]f that connection includes current and
frequent communication, the judge must very carefully consider whether that connection must be
disclosed.”

44

Attorney
Blank Rome LLP

Taking it to the States
•

Individual state ethics panel(s)—not the ABA—are the final arbiters of permissible judicial conduct.
(ABA Formal Op. 462)
–

To date, ten (10) states have issued ethics opinions on use of social media by judges

Source: National Center for State Courts, http://www.ncsc.org/Topics/Media/Social-Media-and-the-Courts/State-Links.aspx?cat=Judicial
Ethics Advisory Opinions on Social Media, (last visited January 12, 2014)

45

Attorney
Blank Rome LLP

States Cautioning ESM Use
•

Massachusetts (Opinion No. 2011-6)
– Allows judges to “friend” attorneys from whom they would recuse themselves if those same
attorneys appeared before the court.

•
•

Florida (Opinion No. 2009-20)
Oklahoma (Opinion No. 2011-3)
– Judges cannot add lawyers who may appear before them as “friends”—or permit such lawyers
to add them as “friends.”

46

Attorney
Blank Rome LLP

States Supporting ESM Use
•

New York (Opinion No. 13-39)
– “[M]ere status of being a ‘Facebook friend,’ without more, is an insufficient basis to require
recusal.”

•

Ohio (Opinion No. 2010-7)
– Allows judges and lawyers to be online “friends”—so long as it is “done carefully” to ensure
compliance with the Code.

•

South Carolina (Opinion 17-2009)
– Allowing judges to be Facebook friends with law enforcement officers and employees

47

Attorney
Blank Rome LLP

States Supporting ESM Use (Cont.)
•
•

Maryland (Opinion No. 2010-07)
Kentucky (Opinion No. JE-119)
– Similar to New York: advising judges using social networking sites to “proceed cautiously” or be
“extremely cautious” on such sites

•

Washington (Opinion No. 09-05)
– Judge not specifically prohibited from blogging ,but urging “caution” as to how blog is used and
comments responded to

48

Attorney
Blank Rome LLP

California Takes a Middle-Ground Approach
•

California (Opinion No. 66)
–

Permitting judges to include lawyers who may appear before them in their online community
• BUT instructing judges to refuse such connections if the lawyer has a case pending before
the judge; judge must actually “unfriend” such individuals

49

Attorney
Blank Rome LLP

What About
•

Judges do not have to remove attorneys from a LinkedIn group—even if they have a pending case—
because LinkedIn “limits the ability to post anything more personal than [what] can be found on a
resume or curriculum vitae.”
–

“Level of connection on LinkedIn is more akin to what is seen between participants in a bar
association subsection or an alumni association.”

–

“[D]anger of receiving an inadvertent ex parte communication is lessened on LinkedIn since
there is not the ability to post daily musings.”

Source: Adrienne Meiring, Counsel to the Indiana Commission on Judicial Qualifications, Ethical Considerations of Using Social Networking Sites,
Indiana Court Times (December 31, 2009) available at http://indianacourts.us/times/2009/12/ethical-considerations-of-using-social-networking-sites/
(last visited January 12, 2014)

50

Attorney
Blank Rome LLP

Takeaways
•

The ABA generally permits attorneys and judges to have online ESM relationships

•

But STATES are the final arbiters of permissible judicial conduct
– Know your state’s prevailing ethics opinion(s)
– If no formal opinion, know controlling case law

•

LinkedIn may be subject to less scrutiny

51

Colin K. Kelly
Partner
Alston & Bird LLP

The Florida Approach
•

The Florida Bar has issued an ethics
opinion forbidding judges from
accepting Facebook “friends” or
LinkedIn “connections” from any
lawyer who might appear before them.
-Judicial Ethics Advisory Opinion:
2009-20.

•

September 2012 – Florida Appeals
Court ruled that judge can be recused
from a case for being Facebook
“friends” with a prosecutor who
appears before him in court. -Domville
v. State of Florida (currently pending
in the Fl. Sup. Court).

52

Colin K. Kelly
Partner
Alston & Bird LLP

Attorney
Blank Rome LLP

Discussion
1. Which is the better approach? Which approach demonstrates the current
trend?
2. What do the model judicial canons tell us?
3. Is this a Digital Double Standard? Should the ban against being Facebook
friends with a judge apply to all social interactions between lawyers and judges
(the Rotary Club and Garden Club too)?
4. Does limiting social interactions between lawyers and judges increase fairness
or isolate judges further and therefore put them out of touch with their
communities?
53

Attorney
Blank Rome LLP

What is the Better Approach?
Which Approach Demonstrates the Current Trend?

54

Colin K. Kelly
Partner
Alston & Bird LLP

What Do The Model Judicial Canons Tell Us?
CANON 1
A judge shall uphold and promote the,
independence, integrity, and impartiality of the
judiciary, and shall avoid impropriety and the
appearance of impropriety.
CANON 2
A judge shall perform the duties of judicial office
impartially, competently, and diligently.
CANON 3
A judge shall conduct the judge’s personal and
extrajudicial activities to minimize the risk of conflict
with the obligations of judicial office.

55

Colin K. Kelly
Partner
Alston & Bird LLP

A Digital Double Standard?

56

Attorney
Blank Rome LLP

Does Limiting Social Interactions Increase
Fairness or Isolate Judges?

57

Colin K. Kelly
Partner
Alston & Bird LLP

Attorney
Blank Rome LLP

Scarab Consulting

Civil Discovery of Social Media: Give Me All Your Tweets!

58

Colin K. Kelly
Partner
Alston & Bird LLP

Background on Discovery of Social Media

•

Over the past two decades,
prompted mostly by e-mail, ediscovery has exploded.

•

In response, discovery costs
have increased exponentially
and placed a greater burden on
companies to retain ESI data.

59

Colin K. Kelly
Partner
Alston & Bird LLP

Federal and State Rules Adapt
•

First e-discovery amendments to
Federal Rules in December 2006

•

New 2013 proposed amendments
to FRCP Rule 26 and 34, among
others

•

States making similar adaptions to
rules

60

Colin K. Kelly
Partner
Alston & Bird LLP

New Amendments to Federal Rules

• Proposed FRCP amendments aimed at “reducing the
potential to impose unreasonable burdens
by objections to requests to produce”
• Proposed FRCP Rule 37 allows spoliation sanctions if a
party is "irreparably deprived” of the ability to “present or
defend its case, even in the absence of willful or bad faith
conduct”
61

Scarab Consulting

View from the Trenches

62

Scarab Consulting

One Paper or Email Universe versus Many New Universes
•

•

•

“Paper discovery only days” mentality still pervades among some litigators:
– Turning a team of associates loose on a chronologically sorted photocopy set of the client’s
original paper documents, or email communications, should allow one to discern how one’s
client’s good relationship with their opponent turned bad and why.
Electronic discovery “universes” currently number in the 10s to 100s (e.g. Facebook/
Instagram/Linkedin) and continues to expand on a regular basis.
Can all of these universes possibly contain relevant evidence?

63

Scarab Consulting

Evidence Directly Recoverable From Local Laptop /
Desktop Computers and iPhone / Android Phones

64

Scarab Consulting

Additional Types of Recoverable Evidence that
Computer and Smartphone Usage Leaves Behind
• The search terms that a user typed into Google and other search engines
• The make and model of smartphone used to create pictures and video files, as well as the longitude
and latitude of where the person was standing when the pictures or movie files were created.

65

Scarab Consulting

Recoverable Location Information, Including Time &
Date Stamps from Laptop/ Desktop Computers and iPhone / Android Phones

66

Scarab Consulting

Timeline Analysis

67

Scarab Consulting

Filtering for Potentially Relevant Evidence
•

Building a key word list including:
– Search terms the computer owner used with Google and Yahoo.
– Website names
– Email addresses
– Individuals’ names and locations
•

A timeline of key word responsive evidence can be created in order to better focus
analysis.

68

Scarab Consulting

Filtering for Irrelevant Evidence Upfront to Avoid Material Wastes of Expense
Work with your team to build a list of “irrelevant” filters and key words.
1)Relevant date range (to exclude irrelevant periods)
2)Project numbers
3)Locations and addresses
4)People’s names
5)Email domains (@irrelevantparty.com)

69

Scarab Consulting

War Stories
•
•
•
•

Forensic image made of former employee’s (“FE”) company laptop.
Analysis reveals that one month prior to giving notice, the FE logs in to Facebook on company
laptop to chat with new employer.
Recovered Facebook chat communication includes discussion of ongoing work with new
employer including meetings with customers of now former employer.
Analysis of location information reveals times and dates of multiple meetings at new employer’s
offices months prior to resignation.

70

Scarab Consulting

War Stories
•

A forensic investigation of a laptop identified a complete iPhone backup within the iTunes folder
on the laptop itself.

•

The iPhone backup included a calendar of key meetings, contacts, call history and text
messages

•

From this information, I was able to build and report on a chronology of meetings including the
parties involved and their locations.

Practice Point: Complete iPhone backups can be recovered from the local iTunes folder on a
laptop or from the Apple service known as iCloud.

71

Scarab Consulting

An Item to Consider
Although many organizations will lockdown or prevent employees from installing applications of their
own choosing on company provided computers, similar safeguards are most oftentimes not put into
place on company issued iPhone or Android phones.
iPhone and Android phones are powerful computers themselves, so to the extent one is concerned
about the potential exfiltration of sensitive information, it may make sense to address this apparent
disparity in I.T. security polices at your organization.

72

Attorney
Blank Rome LLP

Can you ethically instruct a client to “clean up” their Facebook page?
•

Ethics Opinion 745 (July 2, 2013) –
New York County Lawyers’ Association
–

Attorneys may need to advise what clients should or should not post on social media
• Mere fact that an attorney provides such advice does not violate any ethical
obligations
• Attorney may instruct client to use the highest level of security on social media pages
• Attorney can ethically assist in formulating a corporate policy on social media issues

73

Attorney
Blank Rome LLP

Removed, But Not Deleted
–

“Taking Down” Information
• Attorneys may advise clients on “taking down” or removing already existing
information from social media sites, which could implicate spoliation issues if
information is destroyed, rather than removed (from the public portion of a site)
– Attorneys need to understand particular type of electronic evidence—and the
circumstances under which items are destroyed—before giving advice regarding
preservation

74

Attorney
Blank Rome LLP

Ethics Opinion 745
•

Duties to not suppress/conceal evidence implicate questions of substantive law outside purview
of Ethics Opinion 745
–

BUT NYCLA observed that such laws may make it an offense to “destroy material for the
purpose of defeating its availability in a pending or reasonably foreseeable proceeding,
even if no specific request to reveal or produce evidence has been made.”

75

Attorney
Blank Rome LLP

When Cleaning Up Gets Messy

76

Attorney
Blank Rome LLP

The Case of Matthew B. Murray
•

Former Vice President of Virginia Trial Lawyers Association

•

Shareholder and branch manager of the Charlottesville office of
Allen, Allen, Allen & Allen, P.C.

•

Represented Plaintiff Isaiah Lester against defendant Allied Concrete for the death
of his wife after a cement truck crossed the center line and tipped over the Lesters’
car. (Lester v. Allied Concrete, Case No. CL08-150 & CL09-223, Circuit Court of
City of Charlottesville, Virginia)

77

Attorney
Blank Rome LLP

Where Things Got Messy…
•

Murray instructed his client, through his assistant, to “clean up” his Facebook account.
– “We do not want blow ups of other pics at trial so please, please clean up your
Facebook and MySpace!”

•

As a result, Lester deleted 16 photos—but all were eventually given to Allied attorneys before
trial.
– Included a picture of Lester with a beer can wearing a T-shirt that said: “I (heart) hot moms.”
– Jurors were told about the scrubbed photos

•

Emails between Murray, the paralegal and Lester were not made available to the court until after
the trial.
– Murray attributed the error to the paralegal.
– Murray later told the Court he concealed email out of fear a continuance would be granted

78

Attorney
Blank Rome LLP

The Result:
•

As a sanction, the trial judge ordered Murray and Lester to pay $772,000 (Murray’s share was
$544,000) to the lawyers for Allied Concrete for their legal fees.
– Possibly the largest eDiscovery sanction penalty ever leveled directly against an attorney
(Next Gen eDiscovery Law & Tech Blog, Nov. 15, 2011, available at
http://blog.x1discovery.com/2011/11/15/facebook-spoliation-costs-lawyer-522000-ends-his-legal-career/)

•

Judge also slashed $8.5 million jury award—but Virginia Supreme
Court reinstated full verdict in January of 2013.

•

Murray agreed to five (5) year suspension
– Suspension order says Murray violated ethics rules governing candor toward the tribunal,
fairness to opposing party and counsel, and misconduct.

•

Murray resigned from Allen, Allen, Allen & Allen, P.C. on July 25, 2011.
(http://www.allenandallen.com/matthew-b-murray-resigns.html)
79

Attorney
Blank Rome LLP

One more example
•

Gatto v. United Air Lines, 2013 U.S. Dist. LEXIS 41909 (D.N.J. Mar. 25, 2013)
– Frank Gatto, baggage handler at John F. Kennedy Airport, claimed he suffered serious
injuries when set of stairs used for aircraft refueling crashed into him on Jan. 21, 2008.
–

Defendants sought social media discovery in July 2011, asking for “wall posts, comments,
status updates or personal information” posted or made by Gatto on Facebook or any other
site from 2008 through the present.

80

Attorney
Blank Rome LLP

Just The Facts
•

After initially refusing, Gatto agrees to provide Facebook access to defense counsel

•

Defense counsel tries new password but account is unchanged; cannot access site

•

Facebook notified Gatto his account was accessed by unknown IP address in New Jersey

•

Gatto, in turn, notifies his attorney who reaches out to defense counsel (who is on vacation)

•

Gatto agrees to download account contents and provide certification that nothing has changed

81

Attorney
Blank Rome LLP

Just The Facts (cont.)
•

Two weeks later, Gatto’s counsel emailed defense counsel to say Gatto had previously
deactivated account and could not reactive it.

•

Gatto claimed he deactivated account on December 16 because unknown people accessed it
(claims he did not know it was defense counsel until afterward)

•

Facebook automatically deleted the data fourteen (14) days later.

•

Lost postings would have helped refute Gatto’s damages claim (i.e., showed trips he had taken,
social activities and eBay business).

82

Attorney
Blank Rome LLP

The Result:
•

Gatto sanctioned for spoliation

–

Magistrate Judge Steven C. Mannion rejected argument deletion was “accidental”
• “Even if [Gatto] did not intend to permanently deprive the defendants of the [data he]
intentionally deactivated the account [and failed] to reactive [it] within the necessary
time period [causing permanent loss of evidence] that is potentially relevant to [Gatto’s]
damages and credibility.”

–

Defendants entitled to adverse inference instruction

–

Judge declined to award legal fees because destruction did not appear “motivated by fraudulent
purposes or diversionary tactics, and the loss of evidence will not cause unnecessary delay.”

83

Attorney
Blank Rome LLP

Takeaways
•

Providing client advice on social media does not violate any ethical obligations

•

Attorney may instruct client to use highest level of security on social media pages

•

Attorney can ethically assist in formulating a corporate policy on social media issues

•

Removal, not deletion, is appropriate when advising clients to “clean up” social media

•

Severe discovery sanctions are possible

84

Q&A:

Colin K. Kelly
Partner
Alston & Bird LLP

Attorney
Blank Rome LLP

Vice President and
Senior Consultant

Scarab Consulting

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Type your question in the box that appears and click send.
► Questions will be answered in the order they are received.

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