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The Social Butterfly: Your Client's Digital Life

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Lawyer and law firm social media expert Stacey Burke presents on the dangers of your client's social media use during litigation.

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The Social Butterfly: Your Client's Digital Life

  1. 1. + The Social Butterfly: Your Client’s Digital Life Stacey E. Burke
  2. 2. + Introduction
  3. 3. + Social Media: By The Numbers Number of active social media users: 3.4 Billion Number of Internet users: 4.2 Billion Total worldwide population: 7.7 Billion Average time spent on social media: 116 minutes per day Average number of social media accounts per person: 5.54 Social media users grew by 320 million between September 2017 and October 2018 That equates to one new social media user every 10 seconds
  4. 4. + Number of Users by Social Media Channel 2.271 billion users 1.5 billion users 1 billion users 900 million users 562 million users 326 million users 186 million users
  5. 5. + Social Media and Law Firm Clients
  6. 6. + Trends in Social Media  Over the past 10 years, with the growth of Facebook and other social media sites, lawyers representing insurance companies have attacked injured plaintiffs’ right to privacy by demanding access to their social media content.  The trend in more recent cases is for more disclosure of personal and private social media accounts.
  7. 7. + Our Duty to Stay Up-to-Date  Lawyers have a duty to keep themselves informed of changes in the law, including the benefits and risks associated with relevant technology.  In today’s world of social media, relevant technology includes Facebook, Twitter, Instagram, LinkedIn, SnapChat, and more.
  8. 8. + A Sharp Increase In fact, more than 50% of attorneys report seeing an increase in discovery around social media and mobile devices in their practice.
  9. 9. + Education + Monitoring  As lawyers who represent people who are hurting and vulnerable, we need to educate our clients about the dangers of posting on social media.  We also need to be aware of our clients’ social media accounts and review those accounts periodically to ensure our clients are aware of what has been posted. Don’t forget about comments!  What might have seemed like a brief snapshot in time to a client may lead to dramatically different results when presented in discovery, settlement negotiations, or at trial.
  10. 10. + Best Advice? Abstain! Stay Off Social Media Entirely! As difficult as it may be for people to live their lives off of social media, that is the best advice for anyone involved in a personal injury lawsuit. The risks are too great.
  11. 11. + Why Social Media Matters In Litigation
  12. 12. + Jurisdiction & Venue Matter  The standard is fairly straightforward and consistently applied: if social media evidence is relevant, non- privileged, and proportional to the needs of the case, then it is discoverable.  States have developed more complicated approaches to the discoverability of social media evidence, which vary greatly from state to state. Federal Courts State Courts The availability of discovery into social media evidence can be significantly impacted by your venue and jurisdiction.
  13. 13. + Social Media in Litigation: State Court Example  In Gulliver Schools Inc. v. Snay, a 2014 case out of the Florida Court of Appeals, the daughter of the winning party in an age discrimination lawsuit posted a comment on her Facebook page about the outcome of her father’s case and the European vacation paid for as a result.  The post violated the confidentiality provisions of the parties’ settlement and cost the plaintiff all of his winnings.  This case is a good reminder to know what your client is posting on social media, and to ensure you know the rules for your venue and jurisdiction.
  14. 14. + So What Is Your Responsibility When Advising Your Clients? As you know, attorneys have many duties to their clients. Relevant to social media use, attorneys must remember their: • Duty to Preserve • Duty of Competence • Duty of Diligence
  15. 15. + Duty to Preserve  Social media posts, like any other type of “evidence,” may be relevant to the lawsuit in which you are involved.  Data residing on social media platforms is subject to the same duty to preserve as other types of electronically stored information (ESI). The duty to preserve is triggered when a party reasonably foresees that evidence may be relevant to issues in litigation.  Evidence generally is considered to be within a party’s “control” when the party has the legal authority or practical ability to access it.
  16. 16. + But Also These….  Comment 8 to Rule 1.1 of the ABA Model Rules of Professional Conduct requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  These changes unquestionably include social media technology and other social networking platforms, especially as these technologies continue to change the way lawyers communicate with clients.  Rule 1.3 of the ABA Model Rules of Professional Conduct provides that a lawyer shall act with reasonable diligence and promptness in representing a client.  As many social media users publish endless amounts of personal information, the basic task of conducting social media searches on clients, opponents, and witnesses is becoming a minimum level of due diligence expected of competent litigators. Duty of Competence Duty of Diligence
  17. 17. + Expectations Becoming Codified At least 35 states have formally adopted Comment 8 // “The Duty of Technology Competence” and currently recognize that the competency requirement extends specifically to social media.
  18. 18. + Privacy Settings
  19. 19. + But What About Privacy Settings? Social media users are likely familiar with privacy settings, and understand that setting their profiles to “private” ensures people who are not friends, connections, or followers cannot view their information and postings.
  20. 20. + No Expectation of Privacy  Litigants continue to believe messages sent and posts made on their social media accounts and other applications are “private” and not subject to discovery during litigation.  Courts consistently reject this argument, instead generally finding “private” is not necessarily the same as “not public.”  By sharing the content with others – even if only a limited number of specially selected friends – the litigant has no reasonable expectation of privacy with respect to the shared content.  Consequently, discoverability of social media is governed by the standard evidentiary analysis and is not subject to any “social media” or “privacy” privilege.
  21. 21. + Relevant Caselaw
  22. 22. + Different Venues Outline Similar but Different Ethics Rules  New York Bar Association  A lawyer may also advise a client as to what content may be “taken down” or removed, whether posted by the client or someone else, as long as there is no violation of common law or any statute, rule, or regulation relating to the preservation of information.  Florida Bar Professional Ethics Committee  Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the inquirer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information or data is preserved.
  23. 23. + Be Careful When Sharing
  24. 24. + First Reported Decision Involving Sanctions: Lester v. Allied Concrete Co.  The court sanctioned both the plaintiff and his counsel on its determination that they had engaged in spoliation of social media evidence.  In that case, the lawyer told his paralegal to make sure the plaintiff “cleaned up” his Facebook Profile.  The paralegal helped the plaintiff to deactivate his account and delete 16 pictures.  Although the pictures were later recovered by forensic experts, the court found sanctions were warranted based on the misconduct.
  25. 25. + So What Does It All Mean?
  26. 26. + Basic Ethics Commonsense If you can’t do it offline, you can’t do it online. • Do not ask a third party to do what you can’t do.
  27. 27. + What Not To Do: Social Media Posts That Can Impact a Lawsuit If your client is injured, they shouldn’t post about their exercise or health routine: Don’t post photos from a vacation, especially referencing the money won: This tweet cost Elon Musk $20M in fines and his role as CEO for 3 years:
  28. 28. + Follow These Rules for Successful Social Media Management  Confirm your venue and/or state’s ethical rulings about what you can and cannot advise your client to do with regard to their personal social media accounts.  Strongly encourage your clients to post nothing on their channels immediately after an incident all the way through the lawsuit’s resolution.  Make sure any photo, status, link, or otherwise pertinent information removed from a client’s social media account is archived or available, if needed.  Advise your clients about any confidentiality clauses that will impact whatever posts they make after the lawsuit concludes.
  29. 29. + Connect with Stacey:  Facebook: @MarketingLawyers  Twitter: @staceyeburke  Instagram: @MarketingLawyers  LinkedIn: /company/stacey-e-burke-p-c  Website: www.staceyeburke.com  My e-newsletter: http://bit.ly/StaceyMail

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