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Crowe v. Marquette — New Facebook Discovery Case (and possibly lying about it) from Louisiana

In a federal case which appears to be about an employee who claims to be injured on the job, the defendant sought the plaintiff’s Facebook content based upon a lead that the plaintiff had posted that he had been injured while fishing before going to work.  So the defendant-employer asked for two weeks of the plaintiff’s Facebook content.

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The January 20, 2015 Order and Reasons in Brannon Crowe v. Marquette Transportation Company Gulf-Inland, LLC picks up the story from there: after the Plaintiff claimed in his discovery response that he “does not presently have a Facebook account,” the Court did an in camera inspection to reveal “an astonishing 4,000+ pages of of Facebook history… [which the Court] is not about the waste its time reviewing…”

The Court did review enough Facebook content to conclude (a) it should have been produced and (b) at least some of the Plaintiff’s testimony was “inaccurate.”  That alone made it discoverable.

Some highlights/comments:

1.  Plaintiff was served with the discovery on 10/17 and deactivated his account 4 days later;

2.  The IP address which had accessed the account before it was de-activated was the same IP address which re-activated the account (plaintiff had claimed it was hacked…)

3.  Plaintiff claimed that he had deleted, and not de-activated, his account but appears to have re-activated around the same day as ordered (which the court took to mean that the plaintiff knew it was just deactivated)

4.  Various sanction-type orders were entered but not fees.

Bottom line: it is fairly easy to establish that social media has been manipulated and deleted.  Doing so opens it up to discovery by the other side.

Note: this is probably the first social media case where the order cites no authorities at all…?

How Florida Lawyers Use Technology

In January 2015, the Florida Bar released its “Results of the 2014 Economics and Law Office Management Survey,” which you can find here.11618616-businessman-with-magnifying-glass-and-suitcase-vectorkid-internet

The Bar article covers the primary study results however there are far more interesting tech-specific data about lawyers and their use of technology.

Some of the interesting, if not unusual, highlights about the Florida Bar:

* 100,000 lawyers in Florida

* 78% in private practice

* 14% bill more than 2,000 hours per year (34% bill less than 1,000 hours)

* 73% charge $200+ per hour.  32% charge more than $300/hour.

* 40% of paralegals bill over $120/hour

* 63% feel that technology has improved your client relationships

* 90% of lawyers feel that there should be a minimum level of technological competency among lawyers

* 47% feel that technology should be a mandatory part of CLE requirements

* Median lawyer salaries range from $50k (recent grads) to $150k (partners)

* Median paralegal salaries range from $30-50k (secretaries range from $25-41k)

* 92% of firms use some version of Microsoft Office as their primary platform (<1% Google Docs).

* 75% of Offices use Windows 7 or 8 while 23% use either XP or Vista (Mac 6%).

* 44% use Explorer while 39% use Chrome

* 64% of Florida lawyers have an iPhone (6% do not have a smartphone)

* 42% of Florida lawyers use an iPad (42% do not use any tablet device)

* Professionally, lawyers use LinkedIn (42%), Google+ (14%), Facebook (12%), Twitter (3%).  19% use no social media.

* 35% of lawyers do not send faxes (11% of you send 10+ fax per week)

* Average age for Florida lawyer: 48 years old

* 63% male, 37% female

* Caucasian/White (84%), Hispanic/Latino (9%), African-American/Black (3%)

* 3% of Bar members are gay, lesbian, or bisexual

How Jurors and Lawyers Use Social Media and Technology

 

Lawyers are ethically required to stay competent with emerging technology that impacts their practice.  You need confidential communications.  You need to know how to research.fb

This article, How Jurors and Lawyers Use Social Media and Technology, discusses how the average juror is using the internet AND explains what your co-workers and colleagues are doing.

For example, did you know that Microsoft Vista is the most frequently used Windows platform for Florida lawyers?

Or that the average viewer spends 9 minutes on a pornography website?

Check out the article, from the November 2014 Palm Beach Bar Bulletin, here.

If This Then That (IFTTT) For Lawyers

An app called “If This, Then That” or IFTTT exists to bring together your smartphones alarms, notices, social media, and other internet tools so that you can, as their tag line says, “take control of the internet.”photo

This article, “If This Then That (IFTTT” For Lawyers” explains how to combine your various internet resources into one app to bring the internet to you.

The link for the iPhone and Android versions of IFTTT are here.

No Social Media Privacy for Alleged Colorado Theater Shooter

Defendant James Eagan Holmes, the alleged Aurora, Colorado movie theater shooter, sought to suppress records obtained from two “dating” sites, Adultfriendfinder.com and Match.com (to be clear, the former is for “sex and swinger personals”).

TMZ.com apparently broke the story that Holmes, using the alias “classicjimbo,” had a picture of himself with red hair and a comment, “Will you visit me in prison?” homles

Some site photos and a CNN segment can be seen here.

Holmes’ lawyers argued to supress his profile records and subscription records.

The defense argued that the profile and subscription records were private.

As readers of this site well know, there is no reliable precedent that social media content is per se protected by privacy rights.

Applying the Katz “expectation of privacy” standard of 4th Amendment analysis, the court held that there was no societal expectation of privacy to the Defendant’s social media profile since it was accessible to the public.  In fact, the tagline “will you visit me in prison?” suggests that the writer anticipated it would be viewed by third parties.

Likewise, the subscription information amounted to content which the defendant voluntarily turned over to third parties (namely, those two sites).  This would include his billing and personal information as well as his IP address.

Unquestionably, the tagline about prison, if admissible, would be an indicator of forethought.  Likewise, the IP address information would tie the content back to the Defendant’s computer.

The November 7, 2013 Order Regarding Defendant’s Motion to Suppress Evidence: Records from Match.com and Adult Friend Finder.com (D-117) is here.

 

 

 

Spying Spouses: Social Media & Divorce / Family Law

 

Thanks to the Palm Beach County Bar Association’s Family Law CLE Committee for inviting me to speak at the “Spying Spouses” seminar today.Spying_000006098210XSmall_zps7f1f3d0b

The materials for my section on “Family Law Discovery: Social Media and E-Discovery” is here.

We discussed:

* mistakes that lawyers make in e-discovery and social media discovery;

* protection for lawyers and paralegals on LinkedIn when researching people;

* guidance to your clients on their social media use;

* where to look for social media content in 2013;

* steps to obtain social media discovery and how the courts are handling discoverability;

* sample social media requests; discussion of e-discovery and litigation holds in the family law context; and

* a few helpful apps for family law lawyers.

The cases cited in the materials are here:

Cheryl Young v. Michael Young (Fla. 1st DCA 2012)
Schreiber v. Schreiber, 904 N.Y.S.2d 886 (N.Y. App. 2010)
Davenport v. State Farm, 2012 WL 555759 (M.D. Fla. 2012)
Beswick v. Northwest Medical Center, (Broward 2011)
Levine v. Culligan of Florida, 2013 WL 1100404 (Palm Beach 2013)
Salvato v. Miley, 2012 WL 2712206 (M.D. Fla. June 11, 2013)
German v. Micro, 2013 WL 143377 (S.D. Ohio 2013)
Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. 2011)
Juror Number One v. Superior Court of Sacramento (CA. App. 2012)
In Re White Tail, 2012 WL 4857777 (E.D. La. Oct. 11, 2012)
EEOC v. Original Honeybaked Ham,  (D. Colo. Nov. 7, 2012)
Perrone v. Lancaster Regional Medical Cntr. (Pa. 2013)

 

Your Law Firm Blog is Terrible

Some of the worst legal writing is found… on the internet.  Yes, when there is an opportunity to market, explain a new legal development, or explain the latest law firm news, lawyers take to their firm blogs and write some of their worst material.  We understand.  Billable hours are draining.  You write all day.  Maybe you think it really doesn’t matter.  But it does.bad-lawyer-notlegaladvice.org_

Internet content creates attention and drives curious readers to your website, then to your firm, and (hopefully) ultimately to you.  It’s an opportunity to be the first to discuss a new case or development.  But you have to do it correctly.

Your Law Firm Blog is Terrible” is a slightly tongue-in-cheek discussion of what lawyers are doing wrong on the internet and how to correct it.  Thanks to the Palm Beach Bar for permitting me to re-publish from the August 2013 Bar Bulletin.

Boston Bombing: Getting Your News From Internet vs. Television or Print

The recent bombing of the Boston Marathon lead to an unprecedented manhunt which shut down a city and drove a nation to watch the events unfold on live tv. But how “live” was it?  BombPhotoNew

If you were to follow the news hashtags on twitter or listen to the police scanner via Ustream, the news came much faster. The difference is that truly “breaking” events, like any sudden tragedy, involve unexpected turns and, along the way, mis-steps and bad information.  Your job, even as a (passive) reader or listener, is to use good judgment.

The Boston Marathon and Faster Breaking News” was published in the June 2013 Palm Beach Bar Bulletin and covers the difference between following breaking news on 24 hour news channels versus finding “raw” feeds on YouTube, social media, and other streams of information.

Defendants Want Social Media, Plaintiffs Want E-Discovery

In civil lawsuits, particularly those involving individuals as plaintiffs and businesses as defendants, lawyers on either side are turning to new discovery tools that they can use against their opponent without much fear of retribution.  Specifically, a defendant seeks a plaintiff’s social media.  Embarrassing and risky for the plaintiff, perhaps, but likely the defendant-corporation has no social media to be concerned about.  11618616-businessman-with-magnifying-glass-and-suitcase-vector

On the other hand, the plaintiff can serve e-discovery on the defendant: in that situation, the individual plaintiff likely has little to none but the defendant corporation is now scrambling with retention policies, multiple devices, and gobs of data.

Are social media and e-discovery treated the same by the courts?

This article, Defendants Want Social Media, Plaintiffs Want E-Discovery, from the April 2013 Palm Beach Bar Bulletin discusses these (developing) legal trends.

Palm Beach Judge Sasser Rules on Social Media Discovery

 

In a slip-and-fall personal injury action, Palm Beach County Circuit Court Judge Meenu Sasser entered a January 29, 2013 Order Sustaining Plaintiff’s Objections to Social Networking Discovery.

Judge Sasser’s 11-page opinion enters the fray among other trial and intermediate appellate court opinions on the discoverability of social media information.

Judge Sasser references the 2012 article, Discovery of Facebook Content in Florida Cases, on page 1 (obliquely) and page 5 (directly).

She also discusses the 2011 order in Beswick v. NW. Med. Ctr, 2011 WL 7005038, where the trial court ordered social media production.

Social Media Policy: You’re Probably Doing It Wrong

Countless lawyers and HR professionals bravely set out to craft social media policies without having critical tools: a true working knowledge of social media, a clear direction, common sense, and an up-to-date knowledge of what is allowed by law.  

Don’t trust the lawyer-with-a-facebook-account nor should you task the youngest associate to cut and paste from policies floating on the internet.

Test your company’s or firm’s social media policy against these nine examples to see if it passes muster.

If your business chooses to have a social media policy, hire someone who knows how to write (and update) it.

Special thanks to the Palm Beach Bar for publishing this in the February 2013 Bar Bulletin.  Article is here.

Internet Safety for Parents & Students 2013

Last year we discussed, “there is no delete.”  This year we add to that: social media is not free; the price of admission is your personal information.

A special thanks to Rosarian Academy for allowing me to speak to parents and students in separate sessions so parents can learn tips about social media and how to protect their own privacy as well as start the discussion with their children.  

Likewise, students learned about examples where emails, photos, and Facebook posts which people thought were private… ended up circulated around the globe.  And how that can affect their high school, college, and job applications.  We also discussed illegal downloading and other computer crimes.

The Powerpoint for the parents is here.  The student version is here.

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.

iPhone & iPad Apps For Lawyers CLE

The Palm Beach County Bar Association presents a 2-hr lunch seminar, “iPhone & iPad Apps for Lawyers,” on Friday, June 15, 2012.

Come learn tips about your device that you likely did not know.

Better still, learn of over 60 unusual-but-not-obscure apps for lawyers.  We do not cover obvious apps like LinkedIn and Expedia.  Learn about apps you may not know.

Flyer is here.

Sign up here.

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.”