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.

Previously, there was a charge for this service.  In light of new legislation, registration is free and easy.

First, go to http://www.fldnc.com/

Second, enter your various numbers, contact info, and an email address.

Third, if you get a marketing call, you can file a complaint here.

Fourth, for further information (and possible remedies), read Florida Statute 501.059.

In Rodriguez, a victim was attacked, robbed, and her cell phone was taken.  Thereafter, twelve text messages were sent from the victim’s phone.  The case was brought against two defendants who were later apprehended in possession of the phone (which also had a picture of them in the phone which was taken after the assault).

Some quotes from the opinion:

* “Text messages offer new analytical challenges when courts consider admissibility.  However, those challenges do not require a deviation from basic evidentiary rules…”

* A person cannot be identified as the author of a text message solely on the evidence that the text came from that person’s phone.  Some additional evidence is required to authenticate.

* Circumstantial evidence corroborating the sender’s identity may include the context or content of the messages…

* Proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate…

* Once admitted, opponent may rebut authentication and it is for the jury to decide…

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What steps should a lawyer take when receiving such an email?

The relevant rule in Florida is Rule of Professional Conduct 4-4.2 (Communications With Persons Represented by Counsel): “…a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter [unless the other lawyer consents.”  In Florida, the Rule applies “even though the represented person initiates or consents to the communication” (see Rule Comments).

The facts described above occurred in Denise Engstrom v. Rebecca Harsten Goodman et al.  Washington State’s rule 4.2 appears similar, if not identical, to the Florida rule.  The court held that the lawyer should not have continued communications with the party (which included several steps of further communication, including getting the defendant to sign an affidavit).  The court held the appropriate steps would be to cease communication as well as advise opposing counsel and/or inform the court.

Florida lawyers are reminded that the Rules of Conduct are always available online at FloridaBar.org (more specifically, here) and also available in a free iTunes app (link, here).

Or just a name?

Or email address?

The March 2012 Palm Beach County Bar Bulletin can tell you in this month’s Technology Corner article, Internet Sleuthing: Number Guru and Spokeo.

We discussed paralegal ethics relating to the use of social media (especially Facebook) for research as well as ethics relating to assisting lawyers with jury selection by using the internet.

A copy of the powerpoint is here (also along right column of this page under “materials”).

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.”