Intro to eDiscovery - Technology and Justice

Legal Implications of Social
Media for Your Clients and
Your Firm
March 28, 2013
Orange County Bar Association
Technology Committee
 Legal Implications of Social Media for Your Clients
 Donna M. Chesteen, Esq., The Tech Law Firm
 Legal Implications of Social Media for Your Clients
 Keith Kanouse Jr., Esq., The Tech Law Firm
 Effect of Social Media on Actual Cases
 Ethan Wall, Esq., Richman Greer
 Samir Ghia, Esq., Kubicki Draper
The views expressed on this presentation are based on
the professional and educational experiences of each
author. This presentation is given as legal information
and not legal advice. No one should act upon any
opinions or information in this presentation without first
seeking qualified professional counsel.
Legal Implications of
Social Media for Your
Donna M. Chesteen, Esq.
Social Media from Your
Client’s Point of View
 Using social media to communicate
 Whose speech is it?
 Who owns the data?
 Who owns the social media account?
 Using social media to vet employees
 Protecting IP when using social media
 Discovery of social media
Whose Speech Is It?
 Commingling of business and personal messaging can
cause ambiguities. Why should you care?
 Reputation of the organization
 Vacation pics may make an employee look less responsible in
the eyes of a client/potential client
 Financial implications
 Political or religious posts may cause a client/potential client to
impute views to the organization
 Can alienate an entire segment of client base
 Vicarious liability for torts
 Court may have problems determining whether speech was
within scope of employment (ex., defamation)
 Apparent agency issues
 Organization may be bound by speech of individual if 3d party
acts in reliance on the speech
Who Owns the Data/Account?
 Again, why do you care?
 Discovery
 More expensive if personal/business speech is mixed
because there is more data to collect and review
 Business litigation requires exposure of personal speech and
vice versa
 Employee departure from organization
Who Owns the Data/Account?
 Two recent cases
 PhoneDog, LLC v. Noah Kravitz1
 San Francisco Fed. Court
 PhoneDog sued former employee for continuing to use
business-related Twitter account after he left company
 No written policy
 Settled
 Dec 2012
 defendant kept Twitter account and followers (17,000)
Who Owns the Data/Account?
 Eagle v. Edcomm2
 US Dist Ct for District of PA
 Eagle terminated by former employer, Edcomm
 Edcomm continued using her LinkedIn account but replaced
her picture with that of another
 Eagle prevailed on 3 state claims
 misappropriation of identity
 invasion of privacy
 PA statute prohibiting unauthorized use of someone’s name
 Eagle was unable to prove damages
 Court noted that Edcomm did not have a policy in place
informing employees of ownership of LinkedIn account
What Should Your Policies Address?
 How to disambiguate speech
 Ownership of social media accounts
 Ownership of data – including
 Rights to business content even if you don’t have rights to
account itself3
 Steps to insure your control of site once employee that
manages and runs site leaves4
Vetting Potential Employees5
 May violate anti-discrimination laws if use social media in their
recruitment of employees or make employment decisions as a
result of protected class information obtained from social
media background checks
 If social media check is not consistent for all applicants,
inconsistency can lead to claim of discrimination
Policy Suggestions
 Guidelines for info sought and how it relates to job
 Protocols and procedures for verifying info
 Consistent searches for all applicants
 Have disinterested person perform searches and redact protected
 Maintain records of searches and criteria for search
Protecting IP6
 Problems arise because organization does not have
control over what is said and who is saying it
 Conversations are dynamic instead of scripted
 Involve people inside and outside company
 Occur in real time
 Policy suggestions
 Prohibit disclosure of confidential information
 Specify which info is confidential
 How trademarks and logos may be used
 Who owns user-generated content on organization
sponsored sites and who may be liable for it
Protecting IP7
 More policy suggestions
 How organization will enforce rights in its own IP
 Who may speak for organization on social media and what
standards they must meet for tone, content, and timing
 When employees must post disclaimers making it clear that
views are their own and not organization’s
Discovery of Social Media
 Social media is discoverable but scope may vary
depending upon case and jurisdiction
 Mailhoit v. Home Depot8
 “profiles, postings or messages” from any social networking site
“that reveal, refer, or relate to any emotion, feeling, or mental state
of Plaintiff” not specified with “reasonable particularity”
 EEOC v. Simply Storage Management9
 “[i]t is reasonable to expect severe emotional or mental injury to
manifest itself in some content, and an examination of that
content might reveal whether onset occurred, when and the
degrees of distress.”
 Be proactive!
 Have specific policies in place
 Preserve social media once duty to preserve attaches
1. John A. Snyder, PhoneDog v. Kravitz Settlement Points
to Need for Agreements on Ownership of Social Media
Accounts, Non-Compete & Trade Secrets Report (Dec.
12, 2012),
2. Jessica Mendelson & Robert Milligan, Seyfarth Shaw
LLP, Federal Court Questions Whether Damages Exist in
LinkedIn Account Ownership Dispute, Lexology (Mar. 2,
3. Norah Olson Bluvshtein, Fredrikson & Byron PA,
Linkedin Case a “Mixed Bag” According to Judge,
Lexology (Mar. 21, 2013),
4. Id.
5. Seyfarth Shaw LLP, Avoiding The Legal Pitfalls of Social
Media in the Workplace, Lexology (Dec. 16, 2010),
6. Corby Cochran Anderson, Nexsen Pruet, Seven Tips for
Protecting Your Intellectual Property in the Age of Social
Media, Lexology (Oct. 23, 2012),
7. Id.
8. Mailhoit v. Home Depot, Inc., No. CV 11-03892 DOC
(SSx), 2012 U.S. Dist. LEXIS 131095, at *7 (C.D. Cal.
Sept. 7, 2012).
9. EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223WTL-DML, 270 F.R.D. 430, at *435 (S.D. Ind. 2010).
9. Gibbons P.C., Lester v. Allied Part 2: “Clean Up” of
Compromising Social Media Evidence Can Result in
Severe Sanctions, E-Discovery Law Alert (Feb. 21,
Legal Implications of
Social Media for Your
Keith Kanouse Jr., Esq.
Special thanks to:
Jeff Hazen, Assistant Ethics Counsel, FL Bar
Kathy J. Bible, Advertising Counsel, FL Bar
Social Media from Your Firm’s
Point of View
 May, 2012 Guidelines for Networking Sites
 May, 2013 Advertisement Rules Modifications Impact
on Social Media
 What can I say?
 With whom can I connect?
 Common Do’s and Don’ts
May, 2012 Guidelines for Networking Sites
 Personal pages of individual lawyers on social
networking sites that are used solely for social
purposes, to maintain social contact with family and
close friends, are not subject to the lawyer advertising
 Communicating about one’s career in a limited manner
can be seen as a social purpose, but be careful.
 Pages appearing on networking sites that are used to
promote the lawyer or law firm’s practice are subject
to the lawyer advertising rules.
Exception to Ad Rules for Professional
 Exceptions provided for any recipients who “is the lawyer's
current/former client, relative, has a prior professional,
relationship with the lawyer, prospective client who requested the
information, or is another lawyer.” (Rule 4-7.1, 4-7.4)
What about a long-time friend? Not unless you have a professional
How long is ‘continuing’? Depends, but one encounter is not sufficient
What if I met the person at a networking event, we exchanged business
cards….can I now connect? You cannot send a social media invite
to connect or a follow up email w/o it being considered unsolicited
Unsolicited Social Media Invites = Unsolicited Emails
 Invitations sent directly from a social media site via
instant messaging to a third party to view or link to the
lawyer’s page on an unsolicited basis are solicitations
in violation of Rule 4-7.4(a), unless the recipient is the
lawyer’s current client, former client, relative, or is
another lawyer.
 Therefore, you must have a prior professional
relationship to send an invite
Direct Email Rules to Non-exempt Person - Rule 4-7.18(D)
 Must comply with lawyer advertising rules 4-7.11 through 4-7.17
 Subject line must begin with the word “Advertisement”
 Must contain a statement of qualifications and experience,
including specific experience (including years practiced) in the
areas of law being advertised, # cases handled by attorney in
trial (if litigation), FL Bar admittance Date,
 Targeted (mass) emails will require further information
 Rules do not apply to email sent in response to a prospective
client’s request
May, 2013 effective New Advertisement Rules
 New rules expand Ad rules beyond just networking sites into
all media, including, email, Internet banners, pop-ups,
websites, and video sharing sites. Rule 4-7.11(a)
 Rule 4-7.8(f) – Exemptions from the filing and review
requirement - Computer-accessed communications are:
 4-7.6(b) Internet Presence. All World Wide Web sites and
home pages accessed via the Internet that are controlled or
sponsored by a lawyer or law firm and that contain information
concerning the lawyer’s or law firm’s services:
Ok, we got it, the Ad Rules apply to Social Media, but what
exactly are the rules?
May, 2013 effective New Advertisement Rules
 Advertisements may contain:
 objectively verifiable past results – Rule 4-7.13(b)(2)
 objectively verifiable characterizations of skill, experience,
reputation or record – Rule 4-7.13(b)(3)
 testimonials, subject to specific restrictions and
disclaimers – Rule 4-7.13(b)(8)
 Information regarding a lawyer’s or law firm’s services that
is read, viewed, or heard directly through the use of a
computer. Such communications must contain (Rule 47.12(a)):
 Name of advertising lawyer or law firm
 Bona fide office by city, town, or county
My professional website has that info, that’s not too difficult
to follow.
Twitter/Facebook/LinkedIn Posts
 The name of the lawyer or firm and the geographic location of the
lawyer’s office are required under the current rules (4-7.2(a)) and the
new rules (4-7.12(a)).
 If firm does contain a lawyer’s name, then a lawyers name must be
 Does not make a difference if Social Media profile has been made
 Example post for @TheTechLawFirm
‘Keith Kanouse Esq.-Orlando: Glad to be a presenter for today's Social
Medial Law CLE at #OCBA Tech Committee. Let's hope the questions
r easy’
 Currently, the ethics department staff is in the process of proposing
changes to the social networking guidelines which would make such
posts to private accounts exempt from the name and office location
LinkedIn Recommendations / Endorsements
 New Rules do allow for Recommendations, but if a third party posts
information on the lawyer’s page about the lawyer’s services that does
not comply with the lawyer advertising rules, especially objectively
 However, for Endorsements, each is listed as a Skill Set / Expertise.
Since the FL Bar requires Board Certification to be labeled “an expert
in”, one should disable the Endorsement feature on your page.
 Even though new rules allow 3rd party endorsement of a objectively
verifiable skill, experience, reputation or record, any endorsement must
still need to objectively verifiable.
 You must remove any posts by 3rd parties to your social media sites
that do not confirm with the rules. If posts are to 3rd party sites to which
you aware, you must request post be removed.
Miscellaneous Do’s / Don'ts with Social Media
 Do not friend Judges, as the ability of a Judge to accept/deny conveys a
impression that ‘friend’ lawyers may be in a better position to influence.
 However, mediators may be ‘friend’ a the attorneys and clients with they have
or anticipate mediating as long as the mediator does not a conflict of interest
 Do not make a Social Media post unless you would also email your entire
contact list with the same update. Be careful of saying too much,
especially about a client, case, or particularly a Judge.
 Be particularly aware that you may also have an opposing counsel as a friend
who can also read your updates
Remember those Southwest commercials? You don’t want to be the one
wanting to get away after a TMI post.
 Do not use plural nouns for a solo practitioner, no matter staff size.
Miscellaneous Do’s / Don'ts with Social Media
 Attorney client relationship can form via Social Media just as
easily as it can in-person or over the phone. Same rules do
 Communication with represented parties rules apply.
Therefore, you may have to manually ‘unfriend’ the individual
from receiving general updates.
 Viewing publicly available social media information for
unrepresented opposing party is allowed. However, issues may
arise when connecting, especially under false pretense, to
such a party in order to view non-public social media
 However, under eDiscovery there are ways to force opposing party
to turn over private social media communications.
That’s right, you can’t ‘Catfish’ the opposition
Most Common Reasons for Prosecution
 The biggest issue with social media is to avoid direct solicitation thru
inviting people who are known to be injured to a personal injury
website or Facebook page.
 Lawyers cannot directly solicit clients on a discussion board or chat
room. However, one can respond to legal requests, but be careful of
conflict of interest, unintentionally forming attorney-client relationship.
 When posting any update on any website that allows comments that
can be construed for professional purposes, one should follow
unsolicited direct email guidelines.
 Blogging can have serious consequences if it violates an advertising
or Bar rule
 Florida Bar v. Conway, 996 So.2d 213 (Fla. 2008). - Attorney received
public reprimand for posting the derogatory comments, such as
calling her an ‘evil Witch’, about a Judge.

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