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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)

 

2013 Apps for Florida Lawyers (DBR Law Tech Miami)

Special thanks to the Daily Business Review and ALM.com for inviting me to speak at Law Tech Miami.cbh

You can view my 50 (or so) best apps for Florida lawyers here.

Lawyer’s Guide to iOS 7 (part 1)

If you have an iPhone or iPad, you are likely running the new iOS 7.  But do you really know what you are doing?iOS-7-Concept

Apple infamously omits a lengthy instruction book with its iDevices…  but don’t buy a book.

The Palm Beach Bar published the concise Lawyer’s Guide to iOS 7.

And I’ll let you in on two secrets:  it’s not just for lawyers and… part 2 is coming next month.

Google Using Your Photo in Ads? Turn Off “Shared Endorsements”

 

New terms and conditions going into effect on November 11, 2013 for Google Plus members will permit Google to use your photo in ads.

Here’s how to turn it off:

The following is long but I’m assuming you haven’t used Google Plus since you signed up!

1.  Log into your Google / Gmail / Google Plus account (it’s all the same)

2.  go to plus.google.com  (this is your Google+ homepage)

3.  On the left, find the “Home” tab.  Put your mouse on it.  Scroll down to “Settings.”

4.  The third bold section is “Shared Endorsements” — hit edit.

5.  Scroll down and un-check the box, “Based on my activity, Google may show my name and profile photo….”

6.  Hit “save.”

7.  On the same page, scroll back up and hit “Back to Account Settings” in top left.

8.  Check to make sure Shared Endorsements is “off” (if it isn’t, you likely did not save in steps 4-6).

9.  You’re done.

 

New York & Florida Lawyers May Not Use “Skills & Expertise” on LinkedIn

According to a September 11, 2013 advisory opinion from the Florida Bar, Florida lawyers may not list their areas of practice under the LinkedIn header, “Skills and Experience,” without being board certified in that area.

The opinion arises from Rule 4-7.14(a)(4), which says that a lawyer cannot claim to be “certified” or a “specialist” or “expert” unless certified by the Bar, ABA, or another state bar.

While Rule 4-7.14(b) allows some qualifying language, the Bar wrote, “… it is the staff’s position that providing language in the Linked In profile indicating that you are not board certified and not an expert will not remedy this situation.”

The New York Bar agrees (see Opinion 972).

Will the Bar change its mind?  Will LinkedIn change its wording?  An October 8, 2013 Standing Committee on Advertising meeting is reportedly looking into a similar issue.

Until then, I am deleting all of my Skills & Endorsements with the exception of those which are not practice areas.  For example, I still have skills in, say, public speaking.  And I believe being a certified mediator and/or a qualified arbitrator permits me to list dispute resolution skills.  See here.

Before you panic about the loss of your “endorsements,” it appears that LinkedIn saves them since, after you delete them, they offer ways to retrieve them.

Steps to Remove Skills and Endorsements from LinkedIn:

1.  Log in to LinkedIn and hit “Profile” tab in upper left corner.

2.  Select “edit profile” from the drop down menu.

3.  Scroll down to “Skills and Endorsements” and hit the “edit” button just to the right.

4.  For any “Skill” which is a practice area, hit the “x” and delete it.

5.  Hit the “save” button.  Very important!

6.  Scroll back up.  Under your photo, hit the “done editing” button.

7.  Go view your profile page.

Note: this opinion deals with the “skills.”  It did not get to the issue of “endorsements.”  So hiding your endorsements (as LinkedIn explains here) is irrelevant.

For some background, the Florida advertising rules are here.

 

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.

iPhone / iPad Apps for Mediators

I will be presenting “iPad and iPhone Apps for Mediators” on Friday, August 9, 2013 at the Florida Dispute Resolution 21st Annual Conference for ADR Professionals.florida-county-map

Thanks to those who attend!

I am providing a PDF copy of the Powerpoint which includes:

1.  Tech Recommendations for Mediators and Their Offices

2.  What Techs are Lawyers Using?

3.  25+ Apps for Mediators

A Tinfoil Hat Which Works: “Booster Bag” Is An Anti-Shoplifting Device Under Florida Statute

Make jokes about the paranoid and their tinfoil hats, but the “tinfoil bag” is the real-deal.  Until you stand right in front of the person you’re stealing from.large_woman_tin_foil_hat

Most retail stores, as you know, have security tower devices which detect when items with tags pass through the front door, sounding an alarm.

Shoplifters turn to what is called a booster bag: in this case, a regular shopping bag lined with aluminum foil.  This is also known as a Faraday cage.  It shields the tags from begin detected by security.

In case you are guessing, yes, this is illegal.  In the case of Francesca Cenatis vs. State of Florida, she was spotted (the good old fashion way: by employees) allegedly trying to steal items using a battered Victoria’s Secret bag lined with foil.  It appears the booster functioned as intended — just that she was apprehended by employees who saw her.  And she was arrested anyways.  Use of such a bag is illegal, according to the Fourth District, under F.S. 812.015, Florida’s Antishoplifting Device Countermeasure Statute.

Before we receive gripes and emails about aiding or encouraging someone to break the law: folks, if the instructions are (widely available) on the internet, it is (a) unlikely that this law-related site is going to lead you into a life of crime and (b) it is also likely well-known to shop owners, who have beaten you to the punch and trained employees and have employed better security measures before this “bright” idea came to you.

Can the Government Compel Your Client to Decrypt a Hard Drive?

The Fourth  & Fifth Amendments and technology continue to collide as law enforcement seeks to compel defendants to unencrypt their computer harddrives.  Can they force your client to hand over the password?key

We discussed a similar issue in May about whether, under the Fourth Amendment, the Government could inspect the contents of your laptop, tablet, phone or camera when you cross the border.

Of course, do not expect the answer to be set in stone in your jurisdiction.  The answer(s) are in flux.  Much of it depends on how your client responds to questioning.

The first issue is whether production of  a password is compelled testimony or merely a ministerial act like submitting to fingerprints, blood tests, or a key.

The second issue turns on your client.  In two cases, Boucher and Fricosu, clients sunk their own ship.  In a Florida case, In Re Grand Jury Subpoena Dated March 25, 2011, the defendant did better.

The article, “Can the Government Compel Your Client to Decrypt a Hard Drive” is in the July-August 2013 edition of the Palm Beach 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.

Apps for Business Professionals 2013 (Palm Beach Chamber of Commerce)

A special thanks to the Palm Beach Chamber of Commerce for inviting me to speak on June 13, 2013 regarding iPhone and iPad Apps for Business Professionals.logo

If you are interested in attending, the details are here.

The presentation material is here (also on the right column of this page under “Materials”).

 

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.

Can the Government Search Your iPhone or iPad at the US Border?

Can Border Patrol rummage through the contents of your digital camera, laptop, smartphones, etc at the border?

Yes, according to several recent cases and a broad exception to the Fourth Amendment (search and seizure).

Read “Can They Search Your iPad or iPhone at the Border?” from the May 2013 Palm Beach County Bar Association Bulletin.

And, yes, that case to the right is for sale here .

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.

Sending E-Mails To, Sharing Files With Tourist Does Not Create Florida Jurisdiction

Business travelers and vacationers typically send work-related emails while on the road.  It also is not unusual to share files (or access to files) while traveling.  But can that lead to jurisdiction over you in a wayward state?

According to Swanky Apps LLC v. Daren Horning and Roony Invest & Finance, S.A., the answer is “no.”

A dispute arose between the parties and suit was filed in Miami.  The Defendant filed a Motion to Dismiss, raising the lack of personal jurisdiction.

The facts involve the Plaintiff, while temporarily in Florida, making a phone call to Defendant in New York.  While Plaintiff was in Miami, the parties also exchanged emails and Defendant was permitted to remotely access Plaintiff’s computer to download or edit files.  The court repeatedly referenced that the Plaintiff was in Miami “temporarily” which sounds like a business trip or vacation.  The parties have no other Florida contacts.

Bottom line: receiving calls from Miami Beach and exchanging emails and files with someone “temporarily” in Miami, without more, does not create jurisdiction.