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Deleting versus Deactiving Facebook

With the revelation that Facebook is tracking users across the web, even if you log off, I have deleted my Facebook account.  facebook1

Yes, deleted.  Not just deactivated.

You can “deactivate” your Facebook account and it disappears from sight but it is still there in the Facebook vault, ready for you to re-activate.

So if you want to test your separation from Facebook, this is the step (instructions).

For something hopefully more permanent, you can delete your account.

Mashable ran a good step-by-step to download your data, disconnect your apps, and locate the delete-account-page (“How to Completely Delete Facebook From Your Life”).

Mashable’s article is here.  And the elusive delete-your-Facebook-account page is here.

Florida Judge Disqualified After Facebook-Friending a Litigant

A Florida judge has been directed to recuse herself by an fbappellate court after the judge sent a Facebook-friend request to a party during divorce proceedings.

Specifically, Judge Linda D. Schoonover was presiding over a divorce and, prior to entry of a final judgment, sent a Facebook-friend request to the wife.  Upon advice of counsel, the wife declined to respond.  “Thereafter, the trial court entered a final judgment of dissolution, allegedly attributing most of the marital debt to Petitioner and providing Respondent with a disproportionately excessive alimony award.”  The trial judge denied a motion to disqualify.  A writ was taken and the appellate court reversed.

The Fifth District held, in Sandra Chase v. Robert Loisel, Jr., that:

“[i]t seems clear that a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook ‘friend’ request creates a reasonable fear of offending the solicitor. The ‘friend’ request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the ‘friend’ request.”

Interestingly, the Fifth DCA took issue with the Fourth District’s decision in State of Florida v. Domville that a judge’s Facebook “friendship” with an attorney was also grounds for recusal:

“We have serious reservations about the court’s rationale in Domville. The word ‘friend’ on Facebook is a term of art. A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook ‘friend’ and any other friendship a judge might have. Domville‘s logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary. Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.”

In Florida, there is a Judicial Ethics Advisory Committee opinion on judges and Facebook as well as another opinion about judicial assistants and Facebook.

 

Judge Orders Neutral Examiner of Plaintiff’s Facebook Account

Faced with a dispute over whether a defendant hospital was entitled to access to the plaintiff’s Facebook account, a Pennsylvania judge ordered that a “neutral expert” would be given access to search the plaintiff’s Facebook account for photos of her engaging in physical activity and for references to “snow” (due to alleged evidence she was sledding or undertaking outdoor winter activity).  Apparently, the issue was whether the Facebook content would reveal some evidence that she was acting contrary to her injury claims.facebook1

Typically, as we’ve discussed here before, judges will take one of three approaches: (1) granting access as a normal part of discovery; (2) requiring some threshold indication that there is something discoverable on Facebook; or (3) simply denying the request.

No indication what a “neutral forensic computer expert” may be relative to Facebook.  Maybe a lawyer with a blog?

A full background discussion can be found in Discovery of Facebook Content in Florida Cases.

Case is Perrone v. Lancaster Regional Medical Center (Judge James P. Cullen).

The order is here.

Florida Court Holds Threat on Facebook to be “Sent” to Victim

In Timothy Ryan O’Leary v. State of Florida, the First District held that Defendant’s threat of bodily harm posted to his Facebook page was “sent” under Florida Statute 836.10 (“Written Threats to Kill or Do Bodily Harm”) because it was viewed by Defendant’s Facebook friend who was a family member of the victim.

The court held that the statute is violated when (1) a person writes or composes a threat to kill or do bodily harm, (2) the person sends the communication, and (3) the threat is to the recipient or a member of his family.

Here, Defendant went on a rant about a relative, posting on Facebook that he was “gonna fuck you up and bury your bitch ass. [...]  I’ll tear up the concrete with your face and drag you back to your doorstep.”  The entire post is set forth in footnote two of the opinion.

Without comment, the court deemed this post to be a threat to kill or do bodily harm.

The court held that the post was “sent” since the statute was amended in 2010 to include “electronic communication” and that, by the very nature of Facebook, “it is reasonable to presume that the [Defendant] wished to communicate the information to all his Facebook friends.”

Finally, the Defendant had previously sent a Facebook friend request to one of his relatives, Michael.  At the time the post was made, Michael had accepted the request and was a Facebook friend of the Defendant.  Michael showed the post to another relative, who then showed it to the victim (it appears all persons were related).  The court concluded that Michael was the recipient and the threat was directed at a member of Michael’s family.

Both the trial and appellate court made note of the fact that Defendant’s Facebook page was public at the time the post was made.  It appears the trial court relied in part on the public status of the Facebook page when it ruled on whether the post was “sent.”  In what appears to be dicta, the First District notes that “electronic communications” on the Internet are frequently not direct communications but sent to groups on social media sites.  Thus, this opinion may leave to future cases the specific question as to whether a public post on a social media site is “sent” to a victim.

Fawcett v. Altieri: A New York Court Gets Social Media Discovery All Wrong

A New York court has held that, based on a “survey of social media case,” that there is a two prong test for production of Facebook content which includes developing facts before conducting certain discovery.  The court notes that Facebook production is “tantamount to a costly, time consuming fishing expedition…”  Moreover, the decision discusses privacy rights in the context of Facebook posts.
The opinion in Gina Fawcett, individually and as parent of John Fawcett, Jr. v. Nicholas and Gerald Altieri and St. Joseph by the Sea High School.
Assuming this opinion accurately cites to New York procedural rules, they are markedly different than federal (or Florida) standards.
Some issues with the decision:
The court’s “survey” of social media cases… was three cases.  THIS is a survey of social media cases.  Not merely three cases.
That two prong test (supposedly arising from those three cases) prioritizes some forms of discovery over others and turns a blind eye to the wide discovery that’s permitted in business context.
Facebook production is not costly, nor time consuming.  It’s free and easy.  See the 4 steps here.
If there is a case finding Facebook posts to have privacy protections, it’s an outlier.  Most cases hold, like the one New York case, that a post is akin to yelling out the window.
Here in Florida, even a private diary is discoverable.  Suggesting that there has to be some “predicate” before paper discovery puts a magical wall around social media which a party can construct by downplaying or denying what’s inside.
As a side note, see this 2006 Florida Bar Journal article on Electronic Discovery in Florida — a tad outdated after six years, but a good initial primer.

Palm Beach County Bar: How to Effectively Use Technology in Your Practice

Thanks to the Palm Beach County Bar Association’s Solo & Small Firm Practitioners Committee for the invitation to speak on “How to Effectively Use Technology in Your Practice.”

We focused on iPhone/iPad apps for your practice, mediation, and trial as well as general social media discovery and marketing tips.

Today’s course was taught by Spencer Kuvin of Cohen & Kuvin and Christopher Hopkins of Akerman Senterfitt

Special thanks to the Committee chair, Shannon Sagan.

This course included:

*Spencer’s top 15 apps
*Christopher’s top 15 apps
*Tech in Mediation & Trial
*Social Media Marketing
*Posting Depos on YouTube?
*Social Media Discovery
*Sign PDFs on iPad = mobile office
If you missed it, or if you want to review, the Powerpoint is here.

Judge’s Guide to Social Media

The Fourth District Court of Appeal ruled yesterday that it was grounds for disqualification if a judge was Facebook-friends with the prosecutor.  In Pierre Domville v. State of Florida, a criminal defendant moved to disqualify Judge Andrew Siegel because the prosecutor was one of the judge’s friends on Facebook.  The Court relied upon Judicial Ethics Advisory Committee Opinion 2009-20, which notes that such public display of connection creates the appearance of impropriety.

So what is a judge to do?  The quick-and-clean option is to de-activate all social media accounts.  That may not be desirable.  The more reasonable option is to revisit social media accounts and determine if they can be open to anyone so that there is no acceptance or rejection of contacts.  Ironically, Facebook (like Twitter) has a fairly easy solution: open a fan page so that anyone can follow you (obviously, the content on an open fan page is likely a bit less personal than what you might share in your circle of Facebook friends).  Contact your current Facebook friends explaining that anyone who might reasonably appear in front of you is going to be de-friended (no offense).  Leave the “private” Facebook account for personal and family contacts who will not appear before you.

UPDATED (9/15/12): Daily Business Review’s “Judges React to Fourth DCA Opinion Over Facebook Friendships.”

 

New York City Bar Opion 2012-2 – “Inadvertent” Social Media Contact May Violate Rules

The practice of using search engines and social media to research jurors has existed for several years (arising about the time we stopped using the phrase, “Web 2.0″).  In 2009, I wrote a “how to guide” explaining to lawyers how to use social media to research jurors — in a mere three years, while the concept remains sound, most of the instructions have become outdated.  That’s fine and, in fact, the steps lawyers use currently to research jurors are actually simplified since Google, Facebook, Twitter, docket searches, and a few other sites have lead to “one stop shopping” results.  But it is worth noting how much the technology has changed in three years.

Since that time, however, there has been a wave of ethical opinions around the country explaining that, even on the internet, there can be no direct contact with jurors.  You cannot ask a paralegal to Facebook-friend a potential juror.  Judges can’t Facebook-friend lawyers but lawyers apparently can friend JA’s (not recommended).  In short, a lawyer cannot do on the internet what he or she cannot do in the real world.

The New York City Bar, however, recently threw cold water on the discussion by issuing Opinion 2012-2 suggesting that “attorneys may not research jurors [on the internet] if the results of the research is that the juror will receive a communication.”  The Bar went on to state that, even if the lawyer is unaware that the juror might get a notification, this “might run afoul” of the ethical rules.  Incidentally, their Rule 3.5(a) is quite similar to Florida’s 4-3.5(d)(1)-(2).  Again, like other Bars, there is an admonishment that using third parties, like paralegals, does not cure the problem and, indeed, may be a violation itself.

At first blush, this interpretation of the “no communication” rule seems to be well-founded as a hard and fast rule with clear boundaries.  For example, this prohibits Facebook-friend requests (which has been covered in other bar opinions) and, even though the Opinion does not specifically reference it, this Opinion appears to prohibit “following” a juror on Twitter since the person could see that the lawyer has started to monitor his or her posts.  Again, not mentioned in the Opinion, this could also cover LinkedIn, which provides a (paying) user with the ability to see who viewed their bio.  The Opinion tasks lawyers with researching social media policies before using them in order to avoid this “communication.”

However, by you reading this post on my website, I have gathered information about you.  Nothing serious.  And nothing more than any other site would gather.  In fact, I’d have to log in to my web hosting service to see details about the site traffic.  But with some technical doing, I suppose I could determine that the IP address of a particular reader belongs to a law firm.  In short, a tech-minded juror might know that your law firm visited his or her blog, let’s say.  That scenario may be a stretch — by 2012 standards — but not a long stretch and, as we’ve seen in three short years, the technology will likely change.  So, when the Opinion says “search engine websites may be used freely for juror research because there are no interactive functions that could allow jurors to learn of the attorney’s research or actions” — that’s not entirely true nor is that a definitive policy ground which is likely to serve the test of time.

The Opinion rests upon the premise that, by  researching jurors online, lawyers could discourage jury service “by the knowledge that attorneys and judges can and will conduct active research on them or learn of their online — albeit public — social lives.”  That policy is stated without empirical evidence and, indeed, we’ve certainly come to recognize that jurors are researching us.  Perhaps jurors care that lawyers are researching them.  Perhaps they don’t.  It would be an interesting study to see how jurors react to the idea that they are being investigated beyond voir dire.  One might guess, contrary to the NYC Bar, that jurors might expect that lawyers, like everyone else, are turning to the internet.

For a fairly up-to-date “social media ethics quiz,” take a look at this post and powerpoint.

For discussion of NYCB’s new opinion, check their blog.

Thanks to the ABA for the heads up (“Ethics Opinion Warns Lawyers About Perils of Unintentional Juror Contact During Online Research“).

California Court Explains How to Get Facebook Content Without Violating SCA

In Juror Number One v. Superior Court of Sacramento County v. Royster et al., a juror reportedly entered upwards of 30 Facebook posts during trial.  Some were reportedly deleted.  The issue of juror misconduct was raised.  The trial court ordered that the juror execute a consent form “sufficient to satisfy the exception stated in Title 18, USC section 2702(b) allowing Facebook to supply the postings by by Juror Number One during trial.”  An appeal, which made its way up to the California Supreme Court but was ultimately decided by the Third Appellate District, resulted.

This opinion may have broad implications since it provides a concise overview of the Stored Communications Act (SCA), as applied to social media sites, and further confronts the defenses which Facebook raises when confronted with subpoenas and orders for user content.  In short, this opinion, from a court in Facebook’s home state, sets out winning arguments to avoid the objections which Facebook typically raises to avoid production of user content.

The SCA was drafted in the mid-1980′s prior to the world wide web, much less the modern browser (both early 1990′s), and courts have subsequently struggled trying to shoehorn social media and Web 2.0 concepts into the quaint, antiquated tech-speak in this decades-old legislation.  Regardless of whether Facebook is akin to a “bulletin board system” or whether it is an “electronic communication service” or a “remote computing service” makes little difference in these situations.  The SCA provides that there is no protection for the user content if there is consent to produce.

Litigants and courts have skirted Facebook’s SCA claims by making the request for content to the Facebook user (typically a plaintiff but here a juror), not directly to Facebook.  Armed with an order compelling the user to produce Facebook content, this opinion notes that “because the messages remained in the constructive control of the [user], they were subject to discovery under the federal rules, notwithstanding the SCA.” (citation omitted).  In short, if Rule 34 (or some similar state) discovery rule applied, that was sufficient consent.  The California court concluded, “in this case, the particular device that the SCA calls for is ‘consent’ and the [user] has not cited any authority for the proposition that a court lacks the power to ensure that this necessary authorization is forthcoming from a party with the means to provide it.”

Counsel seeking to obtain Facebook content, but avoid Facebook’s claim of SCA protection, will want to read this case.

New Rules for Juror Internet Use in Florida Criminal Cases

The Florida Supreme Court issued an opinion last Thursday approving new standard jury instruction 1.001 (Introduction) which, according to the Comment, deals with jurors’ “communication with other and outside research.”

If there is any question as to the serious nature of juror internet use — either tweeting/Facebooking about service or researching issues in the case — that doubt should be resolved since the prohibition rule is now the first thing jurors hear in a case.

The new set of rules was enough of a landmark that the ABA Journal noted the development.  The approval of these internet rules however, went without comment in the opinion.

The May 17 opinion is In Re Standard Jury Instructions in Criminal Cases – Report No. 2011-03.

The new rule is:

1.001 INTRODUCTION

To be given when jurors are in courtroom, prior to voir dire. In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic rule is that jurors must decide the case only on the evidence presented in the courtroom. You must not communicate with anyone, including friends and family members, about this case, the people and places involved, or your jury service. You must not disclose your thoughts about this case or ask for advice on how to decide this case.

I want to stress that this rule means you must not use electronic devices or computers to communicate about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages to or from anyone about this case or your jury service.

You must not do any research or look up words, names, [maps], or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else.

All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution to this case. Unlike questions that you may be allowed to ask in court, which will be answered in court in the presence of the judge and the parties, if you investigate, research or make inquiries on your own outside of the courtroom, the trial judge has no way to assure they are proper and relevant to the case. The parties likewise have no opportunity to dispute the accuracy of what you find or to provide rebuttal evidence to it. That is contrary to our judicial system, which assures every party the right to ask questions about and rebut the evidence being considered against it and to present argument with respect to that evidence. Non-court inquiries and investigations unfairly and improperly prevent the parties from having that opportunity our judicial system promises. If you become aware of any violation of these instructions or any other instruction I give in this case, you must tell me by giving a note to the bailiff.

Comment

The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops. This instruction was adopted in 2012.

Note, also, the new qualifications instructions, found on page 24-25 of the opinion:

QUALIFICATIONS INSTRUCTION

Many of you have cell phones, computers, and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse.

Between now and when you have been discharged from jury duty by the judge, you must not provide or receive any information about your jury service to anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, phone or computer communications.

In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.

After you are called to the courtroom, the judge will give you specific instructions about these matters. A judge will tell you when you are released from this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case.

NOTE ON USE
This instruction should be given in addition to and at the conclusion of the instructions normally given to the prospective jurors. The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops. This instruction was adopted in 2012.

 

Discovery of Facebook Content in Florida Cases

At least two Florida courts have issued orders permitting the discovery of Facebook content in civil actions (one is here).  This has been the subject of orders, appeals, and articles around the country.

But how exactly do you pursue social media discovery (or, conversely, protect your client from it?).

Discovery of Facebook Content in Florida Cases”  is the first article with specific examples and explanations.  It also may be enlightening for counsel who are not involved in litigation.

The article appears in the Trial Advocate Quarterly Spring 2012 edition, published by the Florida Defense Lawyers Association.  Authors are Christopher Hopkins and Tracy Segal.

Florida Court Orders Plaintiff to Produce Facebook Content

Consistent with most jurisdictions nationwide, a Fort Lauderdale, Florida circuit court judge ordered plaintiffs in a medical malpractice case to produce Facebook data in discovery.  Plaintiffs had objected to the production on the grounds that the request was overbroad, burdensome, not within the scope of discovery, and violated privacy rights.  The order recites two of the social media interrogatories at issue which may be of use to practitioners.  

Judge Mily Rodriguez Powell wrote that the information shared by the Plaintiffs on social media websites was “clearly relevant to the subject matter of the current litigation” and narrow in scope (given the short history of social media, narrowly tailoring such requests is often not difficult).  The court further held there was no expectation of privacy, citing to New York and California cases.

The Bent v. Northwest Medical Center et al. order is here.

For similar recent opinions out of Pennsylvania and New York, see “No Such Thing As Privacy in the Social Media World.”

Facebook Security Settings for Lawyers (and Their Families)

As much as lawyers want to use Facebook for advertising, a key concern is security for their “public” accounts… and their personal ones.  

This October 2011 article from the Palm Beach Bar Association explains, in step-by-step format, how to secure your Facebook accounts.

In light of the recent Facebook changes, however, you may need to do some further hunting to find some of these options.

CT Judge OK’s Facebook Joking Juror & Juror Facebook-friending

On October 5, 2011, a Connecticut federal court judge declined to order a new trial after the defendant in a tax evasion case learned that  (a) “Juror X” was posting on Facebook during trial that he “may get 2 hang someone… can’t wait” and “Guinness for lunch break” and (b) “Juror X” was Facebook-friending “Juror Y.”  

During an in camera evidentiary hearing, Juror X stated that the “hanging” comment was simply a joke and that he kept an open mind throughout the trial.  Likewise, he acknowledged that he Facebook-friended Juror Y but that they never have improper communications during the trial.

The order in United States v. Stavros M. Ganias is here.

(Intermediate) Facebook for Lawyers & Law Firms: Ethics, Jury Selection, Marketing, Fan Pages

In 2011, the Palm Beach Bar Association hosted “Intermediate Facebook for Lawyers & Law Firms,” a seminar regarding Facebook:

1.  Current legal ethics issues;

2.  How to use Facebook and social media for jury selection;

3.  Facebook marketing for lawyers; and

4.  How to set up a Facebook fan page for your firm.

In case you missed it, the powerpoint is here.