An HB Conference Report

By Tom Hagy

With a reported 500 million Facebook users sharing some 25 billion pieces of information each month, some of it is bound to end up in the courts.  And it is, said Robinson Calcagnie & Robinson attorney Karen Barth Menzies, and on a  “very exponential basis.”  It is an evolving rub that is presenting new twists in a variety of  contexts relating to jurors, witnesses, attorneys, law clerks and others in the courtroom.

Menzies participated on a panel along with attorney Gregory Spizer of Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, and two judges:  Philadelphia Common Pleas Judge Sandra Mazer Moss and U.S. Judge David R. Herndon of the Southern District of Illinois.  The panel – titled “Social Media, Juries, and the Use of the Internet: Ethical Pitfalls & Things to Avoid” – was part of the “Mass Torts Judicial Forum with Judge Marina Corodemus” produced by HB Litigation Conferences on June 28, 2010, in Philadelphia.

Discovery requests. Increasingly plaintiff attorneys are making discovery requests relating to Facebook and MySpace and other sites, Menzies said, emphasizing the importance of checking these sites when preparing a case.

“Companies are scrambling to come up with policies as to what employees can put on websites and what they do while at work,”  she said, pointing to one large drug company that now prohibits employees from going on Facebook at work.

What’s discoverable? Judges are being faced with what is discoverable and, with motions to compel, are deciding that the issue really comes down to a question of privacy.

“It is really a shield and a sword for both sides,” Menzies said.   In some of the early decisions going back to 2001, judges were basically holding that if something is on the Internet then it’s in the public domain and, therefore, discoverable.  “And [the court’s] weren’t recognizing that there were steps to be taken to try to keep your information private.  The companies had to respond on that front as well.  Once Facebook, MySpace, the companies and the social media organizations realized this was an issue they started putting privacy settings out there, and so a lot of judges were looking to see ‘Alright, did the plaintiff or defendant take steps themselves to make their information more private?’  In those cases you see the judges finding in favor of protecting that information as private, and if they didn’t take any privacy setting effort then they’re allowing the discovery in.”

Privacy steps not always enough. Menzies continued that there are times – even through subpoenas – where even if individuals did take the privacy steps it will be found relevant to the claims.  For example, she said, if somebody is complaining about symptoms or if there is an employment discrimination lawsuit – “that communication back and forth sometimes can be very relevant and judges will find in favor of production.”

Not my default. Earlier this year Facebook sparked a backlash when it changed its privacy settings so certain member information was public as a default.   Hackles and eyebrows were raised among the high-tech community as well in the U.S. Senate, members of which want the Federal Trade Commission to examine what Facebook is allowed to do with member information.  “They are selling it to other organizations, so that’s a hot issue right now,” Menzies said.

Probably the most important case to take a look at right now is Cripsin v. Audigier (2010 U.S. Dist. LEXIS 52832) returned by U.S. Judge Margaret M. Morrow in the Central District of California on May 26, 2010.  The issue was whether private communications sent through a social networking or web hosting site afforded protection under the Stored Communications Act.  It was an intellectual property infringement claim between two entities, one of which served a subpoena on social networking sites to get communications that would, the litigant hoped, shed light on the original agreement between the parties.  The court held that the social media programs qualify as electronic communications services because they are providing a message delivery service as a remote computing service (RCS) – all defined within the SCA – because they all offered message storage spaces.

“The court recognized that the RCS provider offered longer term storage and processing services, sort of like a virtual filing cabinet,” Menzies said.   “So if you’re utilizing one of these organizations to keep information and you’ve taken the steps to keep it private – which is critical – then the court’s going to honor the privacy under this act.”

The Robinson Calcagnie & Robinson attorney summarized by saying that, whether electronic communications qualify for protection from disclosure in a civil matter, the court needs to analyze both the ECS and RCS as defined under the Stored Communications Act, the provider’s privacy controls, and the individual user’s privacy settings.

It’s an ironic situation, she said, in that Facebook was trying to make a lot of member information public regardless of whether the user tried to make it private or not. Menzies said “one of the criticisms is that it is not easy to figure out how to change privacy settings.  And there are so many people who aren’t even going to think to do it or take the time to do it.   Facebook maintains the whole purpose of its service is to provide public exchange of information.”

Menzies reported to the audience that Mark Howitson, the deputy general counsel for Facebook, gave a keynote address at the Legal Tech conference where he characterized law enforcement as “pretty hip”  and that they “know what’s going on.”  But, he told his audience, courts and civil litigants are “often oblivious.”  He said Facebook defines communication broadly – that it includes user content  — and that “we itch for a fight.”

Menzies noted that she was making her comments in the context of civil litigation.  In criminal matters, she said, “all bets are off – law enforcement can get this kind of information without a fight.”

Greg Spizer of Anapol Schwartz started off with a number of statistics to frame the vast scope of social networks.  In addition to the millions of users and billions of pieces of data on Facebook, he said there are 48 billion unique images on the site, making it the largest photo collection in the world.   Pulling information from a Time Magazine article, he said Twitter boasts 75 million users, YouTube gets 2 billion videos a day, LinkedIn has a reported 65 million users, and MySpace, which has lost ground in this space, still has an enormous following with a disputed 100 million users.

What’s the impact on the legal system? “Topics shared on these sites were probably always discussed at the kitchen table, but now everyone is broadcasting it to the world.   Because it’s broadcast, it is going to find its way into our courtrooms and it’s going to present issues for our cases,” Spizer said.   He said there are reports of jurors tweeting such nuggets as “I fell asleep twice in one day”  or  “[I am] off to jury duty.  As far as I am concerned everyone is guilty for making me go to this.”   A lawyer in Florida tweeted that a judge was “an evil witch,” earning the attorney a reprimanded and a fine.

Judges also have found themselves in trouble.  A blog affiliated with The Cleveland Plain Dealer shared emails that were allegedly traced back to a judge – a claim that was disputed – where the judge allegedly called a defense lawyer in a vehicular manslaughter case a “buffoon” and wrote, “if he could only shut his Amos and Andy-style mouth.”

Even the parties themselves are getting in the act.  Former Illinois governor Bob Bogoyevitch was reportedly tweeting from his trial.

Ladies and Gentlemen of Facebook. Spizer said a juror participating in a criminal case in England, who was struggling with whether to vote guilty or not guilty, posted the facts of the case on her Facebook page and asked her “friends” to take a poll to decide guilt or innocence.   The court found out and removed the juror.

Ethical considerations. The ABA has a commission examining whether the ethical rules in place today cover social media, Spizer said.  In Florida there has been an advisory opinion on whether a judge can be “friends” with a lawyer on Facebook.   “The answer to that question is divided based on whether the lawyer appears before the judge.  If the lawyer appears before the judge then no; if the lawyer doesn’t appear before the judge then it’s ok,” Spizer reported.

In December 2009 the Judicial Conference Committee on Court Administration and Case Management endorsed a set of suggested jury instructions that federal judges should consider using, Spizer said.  They are now in the instructions both before trial and at the end of trial, directing jurors not to use smart phones and not look up materials about the case, the lawyers, the witnesses or the parties.

The Philadelphia Bar Association was presented with an ethical question where a lawyer took a deposition of an adversary and realized that the adversary had a Facebook page.  Apparently the adversary was pretty open to letting people become friends on her Facebook page.  The lawyer realized that she probably wouldn’t accept the lawyer’s friend request because she would recognize the lawyer’s name.  So the ethical question was:   Can the lawyer have her paralegal, whose name the adversary wouldn’t know, be a “friend,” thus granting access to get inside information?  “The PBA said no, you cannot do that under the ethical rules.  You have to be truthful in statements to others and you cannot ask someone in your stead to do that,” Spizer said.

Rules of professional conduct. Spizer put it in simple terms.  “Don’t post anything that could potentially be linked back to your client,” he said.  “Be very careful even if you are releasing information even tangentially about a client.  Opinion seems to indicate that  you would be in violation of ethical rules.”

Candor toward the tribunal. Spizer shared a story about a case in Texas where a lawyer asked for a continuance because she had a family funeral.   “The judge got on [the attorney’s] Facebook page and found that she was on vacation, which did not play well with the court,” Spizer said.

Trial publicity. “Rules for publicity don’t change just because the publicity may be made via social media.  You have to be honest and appropriate in your comments about a trial,” Spizer said.

Communications concerning a lawyer’s services in direct contact with prospective clients. “This goes to whether advertising or looking for clients and marketing yourself  . . .  but there are ethical rules as to how we do this.  You cannot put anything on a social media page or Facebook page or a website or a blog that is in violation of those rules.  You can’t claim to be someone you’re not.  You can’t have direct solicitation with clients.  There are clear rules and just because it is in the social media realm it doesn’t mean you can escape those.”

Judge Moss of Philadelphia said the Judicial Ethics Committee in Pennsylvania has advised Pennsylvania judges not to open Facebook accounts and not to go on anybody else’s Facebook.  “They present it not only as a privacy question, but as a safety issue for us.  Anything personal you say — like pictures of you on vacation or at your beach house or of your children — can be picked up by people who may want to do you harm.”

Judge Moss presides over discovery court every other week where she sees as many as 300 discovery motions.  “A lot of them now are involved in electronic things [such as] Facebook.  Facebook mostly is discoverable . . . .   There was a particular case, a civil assault case, in which the plaintiff had been on vacation and had several photographs taken, one of which [showed him] posing in something that could be looked at as kind of a violent manner.  He was being macho.  But opposing counsel went on the Facebook page, got the picture and wanted to be able to use it against him in court — and it was discoverable.”

Emails. “You don’t think about emails a whole lot of the time,” Judge Moss said.  “We email back and forth.  If I call you up in your office and I say ‘If you file any more frivolous motions in front of me, you’ll be sorry.’  . . .   If I email it to you, you’re going to waive this in front of the Judicial Ethics Committee as a threat.  And you would certainly have a right to do that,” she said.   “People sometimes go on email in a rush because somebody really annoyed you or you’re really high with excitement at some victory that you got, and it’s going to come back to haunt you later.”

Judge Moss told the audience that she was involved in a case where an attorney emailed another lawyer and said there would be consequences if the judge continued on a particular course. “If you read it in the email it definitely sounded like a serious threat,” Judge Moss said, but knowing the lawyer she believed it was merely dashed off in the heat of the moment.  She did not report the attorney, but the advice she received from the Ethics Committee was that she should have.  Judge Moss said she has saved the email should the issue arise again.

What goes around. Judge Moss said there was a blog about Philadelphia judges where people could post anonymous comments about jurists.  “Every Wednesday I went to discovery court, and every Thursday I went on this blog, and I could tell you, anonymous as much as it was, who wrote those emails.”  The bottom line, she said, is “even if you’re anonymous, believe me, we will probably know.”  Eventually the Philadelphia Bar Association was able to get the blog discontinued.

Cell phone text messages. “Mostly [these are] are discoverable,” Judge Moss said.   “In things like an accident case, I have ruled that both cell phone records and text messages are discoverable up to a half hour before an accident.  The idea is that the defense wants to know whether or not you were on the phone or whether somebody texted you or called you and upset you to the point where you created an accident.  So these are the things that you have to watch.   And you have to tell your clients to watch.”  She urged attorneys to “beg [clients] to please be careful about what they do.”

Judge Moss told the audience about a YouTube video that became controversial in HRT litigation.  While the clip was characterized as a “news segment” and presented as an investigative piece of journalism,  the defense moved to exclude the video, saying it was produced by plaintiffs’ lawyers and made to look like a news story.  The plaintiffs claimed they had a First Amendment right to put the video into evidence and that nothing in it was false.

Judge Moss said the video was well done and that people on the video were “speaking the truth from their perspectives.”  Saying she was torn on what to do, she feels she found middle ground, directing the plaintiffs to re-title the video with the tagline:  “the plaintiffs’ perspective.”

She concluded her comments on social media with this caution to attorneys and others involved in litigation:  “You have to realize that no matter what you do . . . we the judges will find out eventually.”

Judge Herndon from the Southern District of Illinois said social media has become a major issue in the federal courts.  “We have discovered that there are a number of law clerks throughout the country on Facebook and unfortunately we’ve also discovered that they are texting or blogging about inappropriate things.”  Each district has been “encouraged strongly” by the Administrative Office to have a policy that discussing something inappropriate via social media will be subject to discharge.  “Fortunately our district got ahead of the curve and already had a policy in effect,” he said.  While there were no reports of infractions in the Southern District, he said other districts were finding posts about draft orders that were not even yet edited by a judge.   He added that comments from clerks about a judge’s whereabouts raise security concerns.

Trial tweets. “We found out that jurors in some trials were reported as tweeting and blogging, so the Administrative Office came out with the preemptory jury instruction.  I give that instruction both before and after trial,” Judge Herndon said.   “Of course the problem we all have is it’s kind of like telling the jury they can’t talk about the case throughout the pendency of the case among themselves, family or friends.  We don’t know whether they do that or not, and I don’t know quite frankly how to police that because if we were to go check their Facebook accounts, depending on their security level, we either might or might not be able to get in.”

While he hasn’t seen jurors using social media during trial in his district, he said “I am sure it will come up at some point in time.”

“We have had a number of federal judges around the country who have had websites started by people intent on doing harm to them,” Judge Herndon said.  “The Internet is both a blessing and a curse, obviously,” he said.