The Social Network Your Best Friend for Investigating and Defending Claims
The Social Network Your Best Friend for Investigating and Defending Claims Erik P. Crep Wicker, Smith, O’Hara, McCoy & Ford, P.A. Miami, Florida What is “Social Media”? Facebook Dating Site Twitter -- Match.com Vine -- Jdate.com Instagram -- Eharmony.com Keek -- Mysugerdaddy.com MySpace YouTube Photo Sharing -- Shutterfly -- Flickr Business Networking -- LinkedIn Blogs/Online Journals Social Media Sites Social Media in Litigation Social Media is relevant and significant in many area of litigation: - Medical Malpractice - Errors and Omissions Cases - Employment Litigation - Construction - Other Professional Lines (financial lines) - Other – transportation; family law; bankruptcy; debt collection; personal injury defense Uses of Social Media in Defending Claims Social Media Sites Contain a HUGE amount of useful Information: Photographs (vacation/mobile updates) Videos Admissions by Plaintiffs Comments on Plaintiffs’ activities /life style Locate other fact witnesses Relationship status Impeachment Material Information on Expert Witnesses Facebook Created in 2004 by Harvard student Mark Zuckerberg and 3 friends – in a dorm room 9 years later, more than 1 billion active users world-wide As of December 31, 2012, over 680 million users use Facebook mobile products Facebook Average Facebook user/Plaintiff -- has over 130 friends -- 15 hours & 33 minutes on Facebook per month -- creates 90 pieces of content per month • Facebook/Mobile Devices -- 500 million access Facebook from mobile device Facebook When searching for information on Plaintiff, your insured, a witness or an expert: • Use first names, last names, maiden names, middle names, nick names • Narrow your search using Plaintiff(s)’ birthdates, cities they lived in, known employers, etc. • Search other individuals who may live in Plaintiff(s)’ household – spouse, children, siblings, friends, etc. • Search by email address and phone number (ex. Email address in medical records/history/incident reports) Social Media Search Tips Locate Plaintiff’s Accounts Print off all public pages Screen shots Save digital photographs (Mobile Uploads can provide GPS data) Create screen shots Catalogue “Friends” Create tickler system to check for updates Do Not “Friend” a Judge Florida’s Appellate Court – 4th DCA- said it violated Florida’s Judicial Ethics Code “Judges do not have the unfettered social freedoms of a teenager” Conveys to others the impression that these lawyer “friends” are in a special position to influence the judge Do Not “Friend” a Plaintiff • Never send a “friend” request to a Plaintiff • Never “friend” request a witness or opposing expert • Never have friends/family/staff do it either Photographs Comments to Pictures Saving Color Photographs Only allows for 140 characters Pictures & Videos Tweeters share commentary on events, what they are doing that very moment; court cases, news stories, politics, how they are feeling, etc. 550 million registered users Over 340 million tweets daily Average user tweets 307 times per year 43% of users use phone to tweet Publicly visible by default People Tweet Everything! Caution – Twitter Story Potential Cisco Employee Response from Cisco Manager Twitter in Litigation: Attorneys and consultants use Twitter to develop profiles of jurors, including their daily activities Such as: • Juror posting on Twitter might give info about how he may decide a case; • Whether or not the juror has tweeted about similar court cases; • How does a juror feel about attorneys trying the case? Paralegal? The Parties? What Have Jurors Tweeted? Defendant looks like a murderer. GUILTY. Waiting for opening remarks. Guilty guilty … I will not be swayed. Practicing for jury duty. So, Jonathan, what did you do today. Oh, nothing really. I just gave away TWELVE MILLION DOLLARS of some else’s money! The lead plaintiff in the case. Since the first day of trial has had nothing to do, so he usually falls asleep which causes his head to bob up and down as he fights to stay awake. + = •Social Media should be accessed during voir dire •Facebook/Twitter/Instagram/Blogs, etc. can provide great insight into the character of potential jurors •1/3 of Facebook users do not have their pages set to private Social Media and Jury Consultants During the nearly two-month Casey Anthony trial, trial consultants would leave the courtroom at the end of each day and head for their computers. There, a team would monitor blogs, Facebook, Twitter to find out what was annoying people about Anthony – and tailor their defense accordingly. Discovery Issues and Strategy Timing of online investigation –> the sooner the better Locate and go to Plaintiff’s Facebook, Linkedin, Twitter Print off all public pages Print screen [ctrl + alt + print screen] Save all photographs Catalogue names and contact information for “Friends” ----------- Some Plaintiffs’ attorneys instruct clients to delete photographs/postings harmful to case -- Therefore, act fast. ASAP. Before Plaintiff retains an attorney. Is Social Media Discoverable Romano vs. Steelcase, 907 N.Y.S. 2d 610 (Suffolk Co., 2010) • Defense allowed to discovery information/pictures on Facebook – including all deleted or archived information • No reasonable expectation of privacy for information posted on internet • “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking” Zimmerman vs. Weis Markets, 2011 WL 2065410 (Northumberland Co. Com.Pl 2011) • Step further – required Plaintiff to provide user names & passwords to defense counsel to investigate [not the norm.] • However – must be relevant and must have factual predicate Social Media Holter vs. Wells Fargo, 2011 WL 797144 (D. Minn. May 4, 2011) • Social networking discoverable • No login/password and no authorization • Plaintiff’s attorney review and produce documents and picture • Just as the Court would not give a party the ability to come into a party’s home and peruse computers to search for possible relevant information, Court did not allow Defendant to review social networking content to determine what it deemed relevant. Barnes vs. CUS Nashville, 2010 WL 2265668 (M.D. Tenn June 3, 2010) • Judge ordered that he (the Judge) would create Facebook page and require Plaintiff to “friend” him. • Judge would then examine Plaintiff’s Facebook – including photographs – to determine what was relevant Predicate Predicate Predicate!!! Caraballo vs. City of New York, Index No. 10 103477-09 (NY Sup. Ct. March 4, 2011) • No predicate = no records/pictures from Facebook or Twitter • Digital fishing expeditions are no less objectionable than their analog antecedents Habib vs. 116 Central Park, Index No. 108434-09 (NY Sup. Ct. March 2, 2011) • No predicate why 80 year old Plaintiff would comment on claim/injury on social networking Bavids vs. Novartis Pharm., 2:06-00431 (EDNY Feb. 24, 2012) • Must be factual predicate, like an individual’s public posting, to obtain information on individual’s private page How to Obtain Social Network Information?? Subpoena to Facebook/Twitter - Not permitted to subpoena to social networking websites in civil lawsuit under Stored Communications Act, 18 U.S.C. § 2701, et. Seq. Crispin vs. Christial, 717 F.Supp.2d 965 (C.D. Cal 2010) Consent/Authorization from Plaintiff Plaintiff produce all “private” photographs or other information Obtain Plaintiff’s login and password What About Spoliation Against Plaintiff? Gatto vs. United Airlines, 10-cv-1090 (Dist. NJ April 2, 2013) Plaintiff brought negligence action – against airline Defendant airline provided authorizations to Plaintiff for Facebook records; eventually Plaintiff agreed However, Plaintiff subsequently deactivated account – which was deleted 14 days later by Facebook Defendant argued prejudice in its defense due to the destruction of evidence Gatto vs. United Airlines continued Defendant sought sanctions for spoliation of evidence Court agreed – deactivation constituted spoliation Facebook relevant for damages Reasonably foreseeable that Plaintiff’s Facebook would be sought in discovery. Plus, Defendant requested information 5 months before account deactivated Court Adverse Inference against Plaintiff Steps to Obtain Information Sent letter to Plaintiff asap, placing them on notice of intent to obtain social media materials But … consider timing Advise that sanctions will be pursued if materials are deleted Once in litigation, send a request for production and interrogatories Send authorization to obtain records directly from social media site If Plaintiff fails to preserve data, seek sanctions Actual Posts – No Self-Control Twitter/Facebook Destroy Plaintiff’s Case Plaintiff fracture arm and scar to forehead in MVA (liability case) – sought over $1 million Tweet – starting “to love my scar” and “able to carry, with previously broken arm, a purse” Posted photo of herself with large purse Verdict for $142k Actual Post from Case Alleges could not fully extend her right arm Alleges that she was limited in her daily activities Alleges she didn’t like being the center of attention due to right arm injury and selfconsciousness Made unreasonable demand – but – 3 days before trial, this was uncovered Actual Post from Case Plaintiff on left President of small college Claimed she was depressed – largely due to her inability to shake hands Really? Really? Really? Actual Plaintiff in a Tattoo removal/malpractice case Claims to be depressed and self-conscious about her body … Posted: “For the first time, I can honestly say my life is perfect.” Oops … Social Media Conclusion Fertile source of information re: Plaintiffs, witnesses, experts, jurors and/or potential jurors Predicate Predicate Predicate It is unlikely that court decisions requiring disclosure will deter users from posting on these networks – people will still post Social media will continue to increase popularity Defense attorneys and claims professionals must use this media as a resource “What To Do” • Sample Interrogatories (Exhibit “A”) • Sample Request for Production (Exhibit “B”) • Sample Authorization/Release to Facebook (Exhibit “C”) Questions? Comments? Erik P. Crep, Esquire Wicker, Smith, O’Hara, McCoy & Ford, P.A. 2800 Ponce de Leon Blvd, Suite 800 Coral Gables (Miami), FL 33134 (305) 448-3939 [email protected] Electronic Discovery Electronic Discovery Nearly 95% of all information is stored electronically More than 70% electronic information never printed North American businesses = 3.25 trillion e-mail per year & create more than 90% of their information in digital form iPhone Storage Capability - 16 GB - - 5,500 photographs - 32 GB - - 11,500 photographs - 64 GB - - 23,500 photographs • More cell phones in world than toothbrushes Hard Drive Capacity 1 Gigabyte (GB) = 30 bankers boxes 1 Terabyte = 10 trailers of paper 10 Terabytes = Printed collection of the U.S. Library of Congress Goal of Forensic Discovery Capture ALL the data from the beginning sector of the hard drive to the last sector Metadata “Data About Data” (a) System Data - like a card catalogue in a library - computer file itself - ex. Scanemployer.doc - tells where file is located on the hard drive (b) Metadata - Similar to table of contents/index - allows you to do keyword search Forensic Information Pictures Emails/Documents Where originated When taken Altered? GPS location of where pic File email was located in - “dangerous docs” - “bad tests/results” • Metadata - when changes made - who made changes - track changes -drafts of documents taken Altered? Every document has details - Creator of the file - Date of creation - Storage Location - Persons who had access to it - Persons who viewed, copied, edited, forwarded or otherwise interacted with the file over its lifetime - When, why and by whom any part of the document (including metadata) was modified or deleted A Deleted File/Picture is not really Erased or Deleted • Hard Drive are file cabinets • Deleted files are placed in the empty area of the file cabinet • Depending on the amount of data that is saved, eventually the deleted file will be overwritten Electronic Data – Sensitive to Alteration Real Email Altered Email Preservation of Electronic Evidence General rule Once a party reasonably anticipates litigation, it must suspend its routine document retention and destruction policy and put in place a “litigation hold” to ensure preservation of relevant documents. What to do when served with a “Litigation Hold” Meet with client – become familiar with client’s document retention system and document terminology Identify “key players” and confirm their policies on retention Meet with IT personnel who can help with document production Issue a thorough “litigation hold” to all employees who may have relevant information. What to do during a “Litigation Hold” Continually communicate with client to monitor preservation efforts Take possession of data or ensure data is in a safe location Document all steps taken to preserve discoverable data Duty to Preserve Evidence Spoliation of evidence: … is the destruction or significant alteration of evidence or the failure to preserve property for use as evidence in pending or reasonably foreseeable litigation. West vs. Goodyear Tire & Rubber Co.,, 167 F.3d 776 (2nd Cir. 1999) Destruction of Evidence SonoMedica, Inc. vs. Mohler, 2009 WL 2371507 (E.D.VA July 28, 2009) • 2 computers were subpoenaed for examination and the Court ordered parties to turn over computer “without it being touched except to turn it off”. A forensic expert discovered that before turning over the computers “22,603 files/folders had been affected and 556 were manually deleted. Court sanctioned party for $108,215.15. Zubulake vs. USB Warburg • $29 million verdict – spoliation of evidence against USB because the company destroyed email messages that were requested Questions? Comments? Erik P. Crep, Esquire Wicker, Smith, O’Hara, McCoy & Ford, P.A. 2800 Ponce de Leon Blvd, Suite 800 Coral Gables (Miami), FL 33134 (305) 448-3939 [email protected]
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