1. No category

THE INTERACTION OF SOCIAL MEDIA AND
THE LAW AND HOW TO SURVIVE THE
SOCIAL MEDIA REVOLUTION
By Attorney Steven J. Venezia
I. INTRODUCTION
By now, most people have at least an elementary knowledge of
the term “social media.” In fact, many businesses find that a social
media presence is a must in today’s digital world. However, even sophisticated users may not yet realize how significant is the connection
between social media and the law. Social media affects virtually every
area of law, from criminal law to employment law to civil rights and
family law, as well as any form of litigation, and even the ethics of the
practice of law itself. Some state courts are very strict with their social
media regulations, others lenient, and still others have expressed no
opinion on the subject matter at all. New Hampshire falls into the
latter category, where few opinions have been expressed regarding the
interaction of social media and the law. A. What is Social Media?
When people think of social media, they often think of Facebook. While this is not unreasonable, it significantly limits the true breadth
of the impact social media has. In reality, social media is any online
service or site that focuses on building social networks or relations
among people who share interests. Generally, these sites consist of
a representation of each user (usually a profile), his/her links, and
a variety of additional services depending upon the individual site. Most of these services are web-based and provide means to interact
over the Internet, like Facebook does. Social media sites allow users
to share ideas, activities, events, photos, videos, and many other things
to whoever may be interested. Each and every online blog and most
websites offer some form of social media today. B. The Social Media Progression
Social media has come a long way in a very short period of time. A
lot has happened since the very first email was sent in 1971.1 In 1978,

24 
the first copies of early web browsers were distributed through USENET,
an early online bulletin board.2 Then, in 1994, one of the Web’s first
social networking sites, Geocities, was founded.3 In 1995, TheGlobe.
com gave users the ability to personalize their online experience and
share content with other interested users.4 In 1997, AOL Instant Messenger was launched, popularizing instant messaging.5 Also in 1997,
Sixdegrees.com was launched, allowing profile creation and listing
friends.6 We concluded the twentieth century with a means of communication that would change the social and economic community. Then, in 2000, the dotcom bubble burst and sent the stock market
crashing.7 That did not deter the technological progress and in 2002
Friendster was launched.8 This pioneered the connection of real world
friends and the user base grew to over 3 million users in the first three
months.9 In 2003, MySpace launched and the first shot was fired in the
modern day social media revolution. Followed by sites like LinkedIn,
Classmates.com, and Facebook, social media flourished. In case people
were not already connected to each other well enough, Twitter launched
in 2006, allowing users to document their every move.10 Currently,
Facebook has over 845 million users, cementing the argument that a
social media revolution indeed has taken place over the last decade.11 With over 845 million users, it does not appear that Facebook will
be dying off any time soon. So one asks: "Do I join the social media
revolution and if so, why." There are several reasons to enter the social
media universe, including connectivity, the ability to freely advertise,
and ease of communication with the world or a specified target market
and the elimination of geographical barriers. If that does not convince
you, join in order to avoid falling behind the competition. Whether
you have already adopted a social media lifestyle or plan on doing so
in the near future, there are many things to think about, including
how social media and the law interact.
II. ATTORNEY ETHICS
One major area where social media has affected the practice of law
is in the ethics arena. The lawyers' strict ethical code governs conduct
inside and outside the practice of law. Attorneys must be careful when
New Hampshire Bar Journal
Winter 2012
they post anything online, lest they face the wrath of an angry judge, a
governing body of ethics, or perhaps an alienated client or colleague.
must be exercised and a conservative approach with social media may
be the only way to ensure immunity.
A. Bloggers Beware
The case of Sean W. Conway provides a cautionary example. Attorney
Conway thought a Florida circuit court judge was effectively depriving
defendants of a right to a speedy trial and wanted to do something about
it.12 The judge was asking defendants to be ready for trial within a week,
thus requiring them to request a continuance, thereby waiving their
right to a speedy trial.13 Conway went through what he thought were
the proper channels but his efforts produced no result.14
On October 30, 2006, Conway blogged about the issue on JAABlog,
a forum where attorneys discuss issues concerning the Broward County
Court.15 The blog called the judge, Cheryl Aleman, an “evil, unfair
witch,” “seemingly mentally ill” and “clearly unfit for her position
and knows not what it means to be a neutral arbiter.”16 The Florida
Bar determined that Conway had violated five ethical rules, including
rules regarding making false statements or reckless statements about
the qualifications or integrity of a judge and engaging in professional
conduct that is prejudicial to the administration of justice.17 Conway’s
argument that his actions were protected by the First Amendment was
rejected by the Florida Supreme Court.18 Ultimately, Conway received
a public reprimand and was fined $1,250.19
Additionally, an assistant public defender in Illinois lost her job for
blogging about a case she was working on and revealing confidential
client information.20 In addition to being fired, she was charged with
violating legal ethics.21
C. Social Media Marketing
An easy way to violate the code of ethics is to advertise improperly
using social media. Legal advertising is highly regulated in many states
and social media has made it much more cost effective and easy to advertise to large groups of people at once. Even though a post on Facebook
seems more like informal communication, it may be considered an
advertisement by the responsible governing body for ethics. “‘A long series of ethics opinions [including ABA Formal Opinion
10-457 (2010) and Arizona Ethics Opinion 97-04 (1997)] indicate that
if online activities promote a law practice, it is attorney advertising.’”29 A basic rule of thumb is to be very careful if you are posting something
online in order to attract clients. If so, you are likely advertising. B. Won't You Be My Friend?
Carlton Terry, Jr., a North Carolina judge, was publicly reprimanded because he became a Facebook friend of an attorney appearing
in a case before him, and the two men exchanged comments online
regarding the proceeding.22 Jurisdictions appear to be split regarding whether attorneys can
“friend” judges on Facebook.23 The Judicial Ethics Advisory Committee
in Florida believes this would be unethical if there is a possibility the
attorney might appear before the judge.24 On the contrary, Kentucky,
New York and South Carolina do not believe that “friending” a judge
is a violation of ethical standards, as long as a close social relationship
does not exist between the two individuals outside of the social media
contact.25
One question is whether it is permissible to attempt to connect with
the opposition in a case via social media. Model Rule 4.1(a) forbids a
lawyer from making “a false statement of material fact or law to a third
person,” and Rule 8.4(c) forbids a lawyer from engaging “in conduct
involving dishonesty, fraud, deceit or misrepresentation.”26 According
to multiple bar associations, both of these rules are violated when an
attorney connects to an individual under false pretenses.27 So what
happens if you do not use false pretenses? What if you do not disclose
your motive at all? Well, it appears jurisdictions are split regarding
whether an attorney is required to disclose his/her motive from sending
a friend request or connecting via social media.28 As a result, caution
Winter 2012
D. Third Party Posts
Incredibly, even posts by others may result in an ethics violation. According to Ethics Advisory Opinion 09-10 (2009) of the Ethics Advisory Committee of the South Carolina Bar, recommendations on sites
like LinkedIn or Facebook must not “create unjustified expectations
or otherwise mislead a prospective client.”30 As a result, attorneys must
review endorsements and recommendations to be sure they do not create unjustified expectations or mislead prospective clients. This puts a
significant burden on attorneys to keep their online identity updated
and to review what others are posting about them. As more attorneys use social media including blogs, Facebook,
and Twitter, the danger of ethics violations increases. “The ABA’s 2010
Legal Technology Survey Report found that 56 percent of attorneys
in private practice have a presence in an online social network like
Facebook, LinkedIn, LawLink or Legal OnRamp.”31 That is compared
to 43 percent in the 2009 survey and 15 percent in the 2008 survey.32 The law has not yet caught up to the technology and, as a result, many
lawyers are still unsure of what they can and cannot do. III. DISCOVERY
As any litigator will tell you, discovery is arguably the most important part of litigation. This is often where the value of the case is
determined and a possible settlement takes shape. Since the social
media revolution took hold, discovery has changed significantly with
the advent of e-discovery. A. The Rule
The Federal Rules of Evidence allow a party to request another
party to produce and allow the requesting party to inspect, copy, test, or
sample any designated documents or electronically stored information
– including writings, drawings, graphs, charts, photographs, sound
recordings, images, and other data or data compilations – stored in
any medium from which information can be obtained.33 Amendments
made to the rules in 2006 resulted in a broad definition of electronically stored information (ESI). This definition is imprecise so as not
New Hampshire Bar Journal

25 
to limit any particular form of data within the scope of the rule, and is
what opens up a proverbial Pandora’s box of social media, including
blog posts, Facebook posts and profiles, as well as anything else the
producer may have put on the Internet. Data is generally stored in three ways: on a computer hard drive,
in transit (i.e., keystroke, loggers, or spyware), or via online storage
devices such as Gmail, Facebook, or other social media mediums.34 The general rule is that material is not readily discoverable if there was
an expectation of privacy when it was posted. However, if a device is
used for employment and something is stored on the hard drive of that
device or even as a temporary file, that evidence may be discoverable.35
Additionally, parties are now being ordered to produce login names
and passwords to all types of social media accounts.36 These social
media sites are considered public forums by many jurisdictions, even
if the post was only available to the poster’s friends. As a result, clients
and colleagues alike should be advised to be very cautious of what they
are posting online and what others may be posting about them. B. Document Retention
The 2006 amendments to the Federal Rules of Evidence also have
an effect on document retention. Since electronically stored information
is discoverable, there is a duty to preserve such information as soon as
litigation is “reasonably foreseeable.”37 In Micron Tech v. Rambus, the
court found that the defendant was guilty of spoliation because it began
destroying emails and other documents after litigation was reasonably
foreseeable.38 While social media was not involved in that particular
case, businesses and attorneys must be aware of the need to implement
document retention policies to ensure spoliation does not occur. The sheer volume of document production as a result of ediscovery cannot be underestimated. Data is produced faster than ever
before, resulting in exponentially more data. One sobering example of
modern e-discovery is the ongoing Viacom copyright infringement case
against YouTube.39 In Viacom, it was ordered that twelve terabytes of
data be turned over. To put that amount of data into perspective, the
entire printed collection of the Library of Congress is approximately
ten terabytes worth of data.40 Many companies are simply not prepared
to capture and store this amount of digital information.41 Lawyers and clients alike must adapt to the changes in discovery
regarding social media and other electronically stored information. This may require adopting a document retention policy, implementing a social media use policy and altering standard discovery forms,
including interrogatories and requests for production of documents. If attorneys are not requesting electronically stored information, including social media related information, they may be starting their
clients off on the wrong foot. Some may argue that the discovery of
this information is unduly burdensome or even an invasion of privacy,
but it does not appear that the rules are going away. IV. JURY SELECTION
Many cases may depend on jury selection and some clients may
have enough at stake to pay for mock trial and jury consultants, who
will work to find the ideal jury.42 Often times, litigators do not have the

26 
option of “ideal” jurors and must select out of a jury pool of less than
perfect candidates.43 These attorneys often rely on the voir dire process
to provide a window into the identity of the potential juror, including
his/her past experiences and feelings on a particular matter.44 A. Go Beyond Voir Dire
Attorneys now have another tool available to them in cases where
jurors are identified by their full name, and not just a juror number. Although common law is not developed in this area, one state court
has held that attorneys are permitted to research prospective jurors
using social media in the courtroom during jury selection.45
Social media may actually prove more fruitful for weeding out
jurors than their responses to the voir dire questions. As many litigators
can attest, some jurors are not completely forthright in their voir dire
responses. In State v. Dellinger, the court found that a juror was not
completely honest in her voir dire responses.46 She failed to disclose that
she knew the defendant and had, in fact, sent him message on MySpace
prior to appearing for jury duty.47 On appeal, the court found that the
lack of candor exhibited by the juror was grounds for a new trial.48
Social media may be helpful not only during the jury selection
process but throughout the trial. It is advisable for attorneys to request
the court to have jurors list any blogs or websites where they post on a
regular basis, and monitor those sites throughout the trial.49 In one
case, a juror was found to have posted the following on Facebook:
“gonna be fun to tell the defendant they’re GUILTY.”50 This post was
published before the defendant had an opportunity to present her case.51 The juror was dismissed from the jury, fined $250, and ordered to write
an essay on the Sixth Amendment of the Constitution.52
While it is unclear whether appellate courts will order a new trial
based on juror misconduct, it seems that trial courts are reluctant to do
so. In order to warrant a new trial, the trial court will have to find that
the jury was prevented from rendering a fair verdict based on evidence
presented at trial as a result of the juror misconduct.53 Nonetheless,
it is important to monitor juror conduct and use social media to your
advantage during jury selection. V. FREE SPEECH ON FACEBOOK?
The Internet allows individuals to disseminate a message to many
people at once.54 With very little or limited resources, an individual
is able to reach out to the entire world. With that ability comes some
responsibility for what is disseminated and a balancing of the legal
rights of the publisher and the rest of the world.
As an example, consider the case of Megan Meier, a 13-year old
MySpace user. After a fight between her and her friend, the friend’s
mother and babysitter created a fake MySpace account posing as a
young boy named Josh.55 “Josh” pretended to be in love with Megan.56 After exchanging a number of messages, “Josh” told Megan: “This
world would be a better place without you.”57 Megan committed
suicide the next day.58 No one reported the case for approximately a
year as police investigated the crime.59 It was not until Megan’s aunt
told the story to the St. Louis Dispatch, that the case gained notoriety.60 However, in order to protect the identity of the teenage friend, the news-
New Hampshire Bar Journal
Winter 2012
paper elected not to publish the name of the mother, Lori Drew, who
was under investigation for the crime.61 Bloggers, however, elected to
post photographs, telephone numbers, e-mail details, and addresses
of the Drews on the Internet.62 This example illustrates a number of
issues regarding social media. First and foremost, social media gives
people the power, and often the gumption, to do terrible things. Individuals have the ability to hide behind a computer screen and create
a fantasy world that may have a real impact on other individuals, as
it did to Megan Meier. It also illustrates a change that has taken place in the dissemination of information. The newspaper, a medium where many people
formerly sought a bulk of their information, elected not to publish
specific details relating to Lori Drew. Bloggers elected not to have the
same discretion and posted information that not only impacted the
life of the accused but her daughter as well. In the event Drew elects to
pursue legal action against the bloggers, the court will have to balance
the free speech rights of the bloggers versus the privacy rights of Drew. This balancing will likely take place more frequently as communication barriers are demolished. IV. FAMILY LAW
Another realm drastically affected by the social media revolution
is family law. Electronic posts on social media are becoming a daily
routine for many. Myriad people post details and photos of activities
ranging from mundane to adventurous. The data posted is becoming
standard evidence in a divorce cases. A litigant’s electronic profile,
whether on Facebook or another site, contains a wealth of information
for opposing counsel.
Currently, 80 percent of adults in the U.S. who have computers
use social media and most say they spend a majority of their computer
time on social media sites.63 Facebook is the site most often cited by
attorneys, polled by the ABA, for evidence introduced in family court
proceedings.64
A. Passwords Unprotected
One example of how social
media can affect a family law
matter is the case of Stephen and
Courtney Gallion. Recently, Connecticut judge Kenneth Shluger
ordered that the attorneys for the
litigants exchange their client’s
Facebook and dating website
passwords.65 This controversial
decision brings e-discovery to
a new level. Ordinarily, parties
are ordered to produce evidence
that exists on social media or the
Internet, but now parties are being
required to produce their passwords to allow opposing counsel
Winter 2012
access to private accounts.66 While Judge Shluger ordered that neither party was allowed to visit
the other’s social networking sites and post messages as the other party,
it is incredible to think of the amount of access the parties received in
that case.67 Clearly, such access, especially in states with at-fault divorce,
may have a significant impact on the outcome of these matters. B. Family Property or Individual Property?
Another example of the technological impact on discovery in the
family law venue is the case of Moore v. Moore.68 In that case, a laptop
was taken from the husband’s car trunk by the wife.69 Both parties
had logins to the computer and both had documents stored on the
hard drive. The New York eavesdropping laws and federal wiretapping
challenges to admission of the evidence were unsuccessful due to the
fact that the documents were stored on the hard drive without password
protection.70 The machine was determined to be a family computer. Therefore, all information on the machine was discoverable, including
anything on the hard drive related to social media posts or access.
Married couples and litigants in general often think they are posting private thoughts or activities and producing private information on
their computers. The recent case law proves that this is not the case. Litigants must be very careful what they post and where they post it. This may require litigants to think of all possible outcomes well before
they happen, since information on the Internet, and often, on a hard
drive, does not go away when it is deleted. An imprint remains and,
as Judge Shluger decided, that imprint and anything else online, is
discoverable.
VII. EMPLOYMENT LAW
The effect of social media on employment law is significant
enough to warrant a detailed article itself. The issues that arise from
employee behavior on social media and even employer behavior on
social media have already resulted in significant litigation. That trend
is likely to continue, despite increased caution in social media use. ENVIRONMENTAL LAW PRACTICE GROUP
McLane’s experienced environmental team can help you and your client through
state and federal regulatory matters, energy project development and environmental litigation.
Let’s work together.
GREGORY
SMITH
MICHAEL
QUINN
BARRY
NEEDLEMAN
BRUCE
FELMLY
MARK
ROUVALIS
www.mclane.com/environmentallaw
Concord, NH
603.226.0400
Manchester, NH
603.625.6464
New Hampshire Bar Journal
Portsmouth, NH
603.436.2818
Woburn, MA
781.904.2700

27 
A. Search and Seizure
The City of Ontario, California was forced to deal with a social
media situation involving the use of text messages by its SWAT team
members.71 In that instance, the SWAT members were provided cell
phones by the city, but the plans allowed a limited number of text messages.72 The officers went over their limit leading to an investigation by
the city.73 The city found that the officers were sending sexually explicit
texts (sexting), and in one case, they tipped off a drug dealer about
an imminent raid.74 The officers claimed their Fourth Amendment
rights were violated by the search of their phones.75 Approximately
20 federal judges touched the case, which resulted in four different
outcomes before it reached the U.S. Supreme Court.76 Ultimately, the
Supreme Court found the search was warranted and valid and no
Fourth Amendment violation occurred.77 Text messaging, like posting on the Internet, creates a permanent record and the information
contained therein is discoverable. B. You May Have to Keep Your Opinion to Yourself
Comments posted on Facebook and other Internet sites may affect
an employee in a number of ways. For example, NPR reported on an
incident in New Jersey regarding a teacher named Viki Knox.78 Knox,
a teacher, was suspended as a result of posts on her Facebook page. On
her page, Knox opined that the school’s gay history exhibit should be
removed and urged her friends to pray as a result of the sinfulness of
homosexuality.79 As one may expect, Knox had both supporters and
detractors.80 In cases like this, the courts use a three-part test to determine if
disciplinary action could be taken.81 First, the court will determine
whether the employee was speaking as a citizen or an employee.82 In
this case, it may be argued that Knox could have been speaking as
either a citizen or an employee, or perhaps both.83 Next, the court
must determine whether the speech was a matter of public concern.84 Assuming the court determines that Knox’s comments were of public
concern, the court must determine whether the employer’s interest
in maintaining an effective workplace outweighs the employee’s free
speech rights.85 As one could surmise, Knox will likely face a problem
at this stage. After Knox’s comments, there is no question that actual
disruption took place, including protests by both detractors and supporters. 86 Knox’s comments could arguably affect her job performance
as well, especially as it relates to student and parent relationships. Social media gave Knox the forum to disseminate her message
and, at the same time, allowed Knox to deliver her message to a wide
audience, ultimately causing a great deal of disruption and, for Viki
Knox, a great deal of trouble.
There are numerous other examples of how employment law
interacts with social media. Obviously, with a social media forum, it
is easier for employees to communicate with one another, complain
about work conditions and express opinions about colleagues or employers. The rights of employers and employees will continue to be
balanced against one another but employees must be careful of what
they post and employers must be careful not to discriminate against
employees based on social media practices. 
28 
VIII. CRIMINAL LAW
Criminal matters are affected by social media as well. Social
media opens up a whole new world for criminals, whether they are
sexual predators, identity thieves, or con artists.
A. Sexual Indecency
One of the few cases regarding social media in New Hampshire
involved criminal law. A defendant, Andrew Farrington, was convicted
of one count of prohibited uses of computer services.87 In October 2007,
the 21 year old defendant lived in Londonderry.88 He had a Facebook
account and began corresponding with a 13 year old girl.89 Via AIM, an
instant messaging service provided by America Online, the defendant
told the girl she was “cute as hell,” and that he wished she was older so
they could “go chill sometime.”90 Farrington continued to engage in
sexual conversations with the young girl and at one point, attempted
to meet someone he thought was the young girl he was conversing
with.91 The young girl had told an adult male about her interaction
with Farrington, and the adult male posed as the young girl in later
conversations with Farrington. Farrington’s Facebook posts and chat
logs, combined with his attempt to meet the girl provided enough
evidence to convict Farrington of prohibited use of computer services.92 Without the Facebook posts and instant message logs, Farrington likely
would not have been convicted of any crime. B. Cyber Courage
This is a particularly scary effect of not only social media, but the
Internet in general. Individuals, at least at the outset, have the benefit
of anonymity. This often results in lower inhibitions and the ability to
commit acts they may otherwise elect not to undertake. Children can
be preyed upon without even understanding what is happening. Geographic barriers are non-existent online and forums exist everywhere
for sexually explicit behavior. Parents must be ever vigilant of their
children’s online behavior and children must be taught the potential
perils of the Internet. C. Scorn or Identity Theft?
While identify theft is often thought of as a crime aimed at
financial gain, it may also arise as a result of a dispute with an expartner. According to an Associated Press article, a woman accused
of impersonating her boyfriend on a fake Facebook page will be prosecuted for identify theft.93 Dana Thornton was indicted on one count
of fourth-degree identity theft and could be facing a maximum of
eighteen months in prison.94 The Facebook page, allegedly created by
Thornton, included comments that her ex-boyfriend was high all the
time and had herpes and frequented prostitutes and escort services.95 This is not an isolated incident, as social media makes it very easy to
impersonate others. All that is required for a criminal to gain control
of your identity is your login and password.
XI. OTHER CONCERNS
When it comes to social media, the concerns are too numerous
New Hampshire Bar Journal
Winter 2012
to mention. While social media sites offer some limited protection
with privacy policies and terms of use, this protection is not fool proof. Some of the concerns are obvious while others may never even occur
to most people. These matters range from attorney/client privileges
to the distribution of information from user sites to service of process
by social media. A. Attorney/Client Privilege
In some instances, clients may be waiving attorney-client privilege
with social media posts. Assuming a client elected to post portions of
a discussion between her and her attorney on a blog or on Facebook,
that communication is no longer privileged and either the attorney or
client can be called upon to testify.96 In one particular case, a plaintiff
sued Universal for giving YouTube improper notice that the video of her
toddler dancing to a Prince song resulted in copyright infringement.97 The plaintiff discussed the case and discussions with her legal counsel
on her blog site and in Gmail chats with friends.98 Opposing counsel
sought to discover the blog posts and Gmail chats, and argued that
attorney/client privilege was waived.99 The court agreed, and forced the
plaintiff to produce the sought-after material.100 Surely, the plaintiff
never thought she would be waiving her attorney/client privilege by
merely discussing her case on her blog or with a few friends online.
B. Privacy Protection
There is some protection for your electronic information. The
Stored Communications Act proscribes an electronic communication
service provider from divulging data stored, carried, or maintained
on the site to third parties.101 While exceptions exist for government
subpoenas in criminal matters, there are no exceptions in civil matters.102 Subsequent court decisions have held that this act applies to
Gmail and Yahoo.103 While this offers some protection, it is clear that
protections for social media posts are limited and therefore posters
must be cautious.
Despite the protections offered by the Stored Communications Act,
such information may still be discoverable. In Colorado, a subpoena
requesting information from Facebook and MySpace regarding the
plaintiff’s alleged injuries was ruled to be properly within the scope of
a Rule 45 Subpoena and a Motion for Protective Order was denied.104 As a result of the court’s decision, Facebook and MySpace were forced
to divulge the requested information.
Zealand, and the United Kingdom have also embraced such electronic
legal notice.109 It appears that courts are beginning to recognize the
difficulty of serving individuals via traditional methods. In 2002, the
9th Circuit U.S. Court of Appeals upheld a default judgment against
a website after electronic service, noting that the defendant did not
have an office, only a computer terminal.110 It seems that with the
increase in electronic communication, it makes sense to adapt how
proper service is made. Perhaps in the not so distant future, domestic
service of process will be able to be accomplished via email, or even
Facebook. X. HOW TO USE SOCIAL MEDIA SUCCESSFULLY
Now that attorneys and individuals are sufficiently petrified of
so much as turning on their computer, they must understand how to
avoid the troubles connected to social media and just as importantly,
how to use this tool to their advantage. Attorneys and other business people that fail to embrace technology and social media are likely going to be left behind. Instead of
fearing the change, they can develop policies to learn about social
media and deal with it appropriately.
Social media can be a very valuable tool. It allows easy access
to information. It may provide data on earnings and relevant demographics. It may aid in jury selection. It may hinder individuals
from hiding money and resources. It may lead to information that
C. Service by Social Media
Given the explosion of social media, judges are even allowing
service by social media now. As an example, consider the case of
Jessica Mpafe, who had not seen her husband in years.105 Ms. Mpafe
assumed that her husband had moved back to Africa and had no
physical address with which to serve him divorce papers.106 Kevin
S. Burke, the Minnesota judge presiding over the case, thought that
general delivery would be nothing but a waste of postage.107 As a result,
the judge wrote an order authorizing Mpafe to serve notice of the
divorce proceeding to her husband by email, Facebook, MySpace or
any other social networking site.108 Courts in Australia, Canada, New
Winter 2012
New Hampshire Bar Journal

29 
could impeach the credibility of litigants or evidence of adulterous
relationships. This information is available at the click of a button
and can save money and time. LinkedIn, another valuable social media site, is considered a
professional social network. Anyone can search for an individual’s
public profile online. No password is required to conduct a search. Attorneys and employers alike may be able to determine an individual’s
job prospects and evidence of earning potential. The site may even
provide specific employment and industry opportunities and is often
a good source for expert witnesses in a particular industry or field. The marketing possibilities connected to social media are vast. The wide array of information contained on these sites allows advertisers to accurately target their messages without expensive and time
consuming data collection. Additionally, the message is communicated
to many people at a very low cost. While attorneys must take heed in
abiding by the ethical standards placed on them by their particular
state, the potential for social media marketing should not be overlooked, especially considering Facebook has over 600 million users. While social media may seem like a dangerous proposition,
especially after reading this article, there are many things businesses
and individuals can do to protect themselves while not being left in the
social media dust. Below are some recommendations for attorneys,
clients, businesses and individuals to consider while dealing with the
Internet and social media.
First, always be cautious of what you post on the
Internet. Once the message is posted, it exists in some form forever
and can likely be captured by anyone who truly wants to see it. Before
you post, ask yourself whether you would like to be attributed with your
comment during your next family party or court proceeding.
Businesses should consider adopting a social media
policy. In the policy, the employer should outline what employees
and the employer can and cannot do. It is important not to prohibit
lawful activity and not to allow the employer to engage in unlawful
activity.
Managers and owners should learn the ins and outs of
social media and train their employees to use it properly. Businesses will want to explain company concerns to employees, for
example, ethical concerns for law firms or confidentiality concerns
for companies in general.
Employers should develop a document retention
policy to avoid spoliation claims. They must ensure that
there is a system in place to properly store information and dispose of
it only when it is within the law. Attorneys should advise their clients
at the outset of representation to retain all information related to the
litigation.
Businesses can use social media to their advantage
during the hiring process. A simple Google search may result
in pertinent information about a potential job candidate. However,
the hiring department should be trained properly so they do not use
the information obtained to illegally discriminate against potential
candidates. All entities should review their online presence

30 
regularly. A periodic review could result in the discovery of libel or
defamation or even a mistaken release on the part of the company. Similarly, attorneys must be aware of what is being written about them,
even by other individuals, and must operate within the rules of ethics. Communicate with clients effectively. If a client comes
in with evidence, you should always require the client to disclose the
source of the information. If there was any deception involved in obtaining the information, the lawyer should turn it away. Presentation
of evidence is as important as the destruction of evidence. The website
evidenceeliminator.com boasts that not even the FBI can locate
the data it eliminates. The use of these websites should be prohibited
and the client should be informed in writing of document and electronically stored information retention requirements. Clients should
also be informed that any and all internet posts may be discoverable
and that no expectation of privacy exists on a family computer.
Use directories. There are a number of resources available to
attorneys as well as other businesses, such as AVVO.com, JDSupra.com,
Justia.com, Nolo.com and MartindaleHubble.com. Review what other
attorneys are writing and experiencing in their practice and learn from
both their victories and mistakes. Businesses should ask their insurance provider about
coverage. Be sure that your commercial general liability insurance
policies cover social media related risks. You cannot take for granted
that your coverage flows with updated technology. Attorneys should update their e-discovery procedures. This ensures that social media activity and cloud computing
is included in standard requests. More information is being stored on
these media than ever before. In a largely paperless world, attorneys
must capture electronically stored information in their discovery
requests.
CONCLUSION
Laws, particularly common law, are still trying to catch up with
the social media revolution. Courts and legislators are trying to address the problems that have surfaced surrounding social media. This
is an extremely fast-paced medium and the courts and legislators may
have difficulty, at least in the immediate future, catching up. While
some states have addressed lawyers’ professional involvement in social
media, others have not. This has created a wide spectrum of dos and
don’ts on social media. It is important that individuals maintain a working knowledge of
social media and cloud computing as change inevitably continues. It
is also important not to let a fear of social media prevent utilization of
its limitless potential. Undoubtedly, care must be taken as we continue
to travel down the information superhighway, but intimidation of what
lies ahead should not force us into the breakdown lane. ENDNOTES
1.
Jolie O’Dell, The History of Social Media, Mashable, Jan. 4, 2012, http://mashable.
com/2011/01/24/the-history-of-social-media-infographic/.
2.
Id.
3.
Id.
New Hampshire Bar Journal
Winter 2012
4.
Id.
47.
Id.
5.
Id.
48.
Id.
6.
Id.
49.
Id.
7.
Id.
50.
Id.
8.
Id.
51.
Id.
9.
Id.
52.
Id.
10.
Id.
53. In re Methyl Butyl Ether Products Liability Litigation v. ExxonMobil Mobil Corp., 2011
U.S. Dist. LEXIS 135771 (S.D.N.Y Sept. 7, 2010). 11. Facebook, Inc., Registration Statement (Form S-1), at 1 (Feb. 1, 2011), available at
http://www.sec.gov/Archives/edgar/data/1326801/000119312512034517/d287954ds1.htm#toc.
12. Steven Seidenberg, Seduced: For Lawyers, the Appeal of Social Media is Obvious.
It’s Also Dangerous., A.B.A. J., Feb. 2011, at 48, available at http://www.abajournal.com/
magazine/article/seduced_for_lawyers_the_appeal_of_social_media_is_obvious_dangerous.
54. See Lauren Gelman, Privacy, Free Speech, and “Blurry-Edged” Social Networks, 50
B.C. L. Rev. 1315 (2009). 55. See Tamara Jones, A Deadly Web of Deceipt: A Teen’s Online “Friend” Proved False,
and Cyber-Vigilantes Are Avenging Her, Wash. Post, Jan. 19, 2008, at Cl.
13.
Id. 56.
Id.
14.
Id.
57.
Id.
15.
Id.
58.
Id.
16.
Id.
17.
Id.
59. See David Hunn & Joel Currier, Law Lags as Taunts Ruin Lives, St. Louis Post-Dispatch,
Nov. 19, 2007, at Bl.
18.
Id.
60.
19.
Id.
20.
Id.
21.
Id.
61. Steve Pokin, “MySpace” Hoax Ends with Suicide of Dardenne Prairie Teen, Suburban Journals, Nov. 11, 2007, http://suburbanjournals.stltoday.com/articles/2007/11/11/news/
sj2tn20071110-1111stc_pokin_1.iil.txt.
22.
Id.
23.
Id.
24.
Id.
63. Comments by Dolly Hernandez, Partner, Dolly Hernandez, PLLC, Moderator, ABA
Webinar, The Impact of Social Media on a Divorce Case: Big Brother is Watching (Sept. 13,
2011).
25.
Id.
64.
62.
26. Model Rules of Prof’l Conduct R. 4.1(a) (1983); Model Rules of Prof’l Conduct R.
8.4(c) (1983). 27.
Seidenberg, supra note 12.
28.
Id.
29.
Id. (quoting Michael P. Downey, Partner, Hinshaw & Culbertson LLP).
30.
Id.
31.
Id.
32.
Id.
33.
Fed. R. Evid. 34.
Id.
See Jones, supra note 55. Id.
65. Kashmir Hill, The Not-So Private Parts Blog on Forbes.com, Judge Orders Divorcing
Couple to Swap Facebook and Dating Site Passwords (Nov. 7, 2011, 10:42 EST), http://www.
forbes.com/sites/kashmirhill/2011/11/07/judge-orders-divorcing-couple-to-swap-facebook-anddating-site-passwords/.
66.
Id.
67.
Id.
68.
See Flynn, supra note 34.
69.
Id.
70.
Id.
34. Timothy Flynn, Presentation at Institute for Continuing Legal Education’s 10th Annual
Family Law Institute: Emerging Topics in Social Media (Nov. 11, 2011), presentation outline
available at http://www.jdsupra.com/post/documentViewer.aspx?fid=cbc04553-4a9f-41e9af0a-5d12b1a1a4c6.
35.
Id.
36. Posting of Michelle Sherman, What You Wish Your Lawyer Had Told You About Social
Media, to Social Media Law Update (Dec. 14, 2010, 16:47 PST), http://www.socialmedialawupdate.com/2010/12/articles/social-media/what-you-wish-your-lawyer-had-told-you-aboutsocial-media (citing McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (Pa. Sept.
9, 2010)).
37.
Micron Technology, Inc. v. Rambus, Inc., 645 F.3d 1311, 1321 (U.S. App. Ct. 2011). 38.
Id.
39. Joe Dysart, The Trouble with Terabytes: As Bulging Client Data Heads for the Cloud, Law
Firms Ready for a Storm, A.B.A. J, Apr. 2011, at 32, available at http://www.abajournal.com/
magazine/article/as_bulging_client_data_heads_for_the_cloud_law_firms_ready_for_a_storm. 40.
What’s A Byte?, http://www.whatsabyte.com (last visited Jan. 4, 2012). 41.
Dysart, supra note 39.
42. Posting of Michelle Sherman, The Anatomy of a Trial With Social Media – The Jury,
to Social Media Law Update (Dec. 14, 2010, 16:29 PST), http://www.socialmedialawupdate.
com/2010/12/articles/social-media/the-anatomy-of-a-trial-with-social-media-the-jury.
43.
Id.
44.
Id.
45.
Id.
46.
Id.
Winter 2012
New Hampshire Bar Journal
[email protected]

31 
71.
City of Ontario v. Quon, 130 S. Ct. 2619 (2010). 91.
Id. at 445.
72.
Id. at 2625.
92.
Id. at 449.
73.
Id.
74.
Id. at 2626.
75.
Id.
93. Associated Press, Woman to Be Prosecuted for Identity Theft After Impersonating
Boyfriend on Facebook (Nov. 2, 2011), http://www.foxnews.com/us/2011/11/02/woman-tobe-prosecuted-for-identify-theft-after-impersonating-boyfriend-on/.
76.
Id. at 2627.
77.
Id. at 2633-34.
78. Posting of Margaret (Molly) DiBianca to Labor & Employment Law Community, Social
Media Woes for School District, (Jan. 03, 2012, 14:16 EST), http://www.lexisnexis.com/
community/labor-employment-law/blogs/labor-employment-commentary/archive/2012/01/03/
social-media-woes-for-school-districts.aspx?utm_source=twitterfeed&utm_medium=twitter.
79.
Id.
80.
Id.
81.
Id.
82.
Id.
83.
Id.
84.
Id.
85.
Id. 86.
Id.
87.
State of New Hampshire v. Andrew Farrington, 161 N.H. 440, 442 (2011). 88.
Id.
89.
Id.
90.
Id. at 443.
94.
Id.
95.
Id.
96.
Lenz v. Universal Music Corp., 2010 U.S. Dist. Lexis 125874 (N.D. Cal. Nov. 17, 2010).
97.
Id. at 2.
98.
Id.
99.
Id.
100. Id. at 14.
101. 18 U.S.C. § 2701 et. seq. (2011).
102. Id.
103. See, e.g., J.T. Shannon Lumber co. v. Gilco Lumber, Inc., 2008 U.S. Dist. LEXIS
87688 (N.D. Miss. Oct. 29, 2008).
104. Ledbetter v. Wal-Mart Stores, Inc., 2009 U.S. Dist. LEXIS 126859 (N.D. Col. Apr. 21,
2009). 105. Stephanie Francis Ward, Our Pleasure to Serve You: More Lawyers Look to Social
Networking Sites to Notify Defendants, A.B.A. J., Oct. 2011, at 14.
106. Id.
107. Id.
108. Id.
109. Id.
110. Id.
About the Author
Attorney Steven J. Venezia practices with the firm of Upton
& Hatfield. He focuses on litigation, real estate and general
business transactions in the Hillsborough office and commercial and real estate transactions and business planning
at the firm’s Concord office. He is admitted to practice in New
Hampshire and Massachusetts.

32 
New Hampshire Bar Journal
Winter 2012
the
e
v
Sa
e!
Dat -24
e 22
N
U
J
A sneak peek!
NHBA’S ANNUAL MEETING
Omni Mount Washington Hotel
Friday CLE Program
Estate Planning for Lawyers and Their Families
chaired by CLE Committee Member Bob Wells
Saturday morning CLE Program
NH Lawyers Assistance Program
Cecie Hartigan, Executive Director of the NH Lawyers Assistance Program is
working with one of the NHBA’s Leadership Academy Groups to offer
a short CLE program. Details to be announced soon.
Saturday afternoon CLE Program
NH Court Update
chaired by CLE Committee Member Jack Crisp
featuring
Hon. Carolann Conboy
Hon. David King
and other Judges to be announced.
All programs are free for those staying at the Hotel. Commuter rates available.
Watch for more updates in the NH Bar News, NHBA e-bulletin, and www.nhbar.org.
Winter 2012
New Hampshire Bar Journal

33 