Recently in Attorney Practice Tips Category

July 22, 2013

Facebook "tagging" adds a new wrinkle to social media discovery

Thumbnail image for facebutton.pngMore litigants are requesting that their adversaries produce social media evidence during litigation. Often this information is reasonably likely to lead to the discovery of admissible evidence at trial.

For example, a Facebook status update about a great day from a plaintiff suing her former employer for discrimination could bear on her claim for emotional distress. Therefore, she would have to produce this status update as part of discovery if requested to do so, because, not only is the information relevant, it is within the plaintiff's "possession, custody, or control."

Same holds trues for a plaintiff in a personal injury action claiming that she suffered a debilitating back injury. She may have to produce recent Facebook photos of her riding on a speedboat. 

And according to a recent decision from an Indiana federal court, this obligation to produce would extend to photos that the plaintiff didn't post on her own Facebook page.

In Higgins v. Koch Development, the plaintiffs, visitors to Koch's theme park, claimed to have suffered serious injuries. Koch requested that two of the plaintiffs produce Facebook information. Those plaintiffs objected for, among other reasons, they claimed that the privacy of non-parties was violated because photographs and information uploaded by non-parties and published on their pages, through a process known as "tagging," would be discovered.

For my Facebook beginners out there, (here) is an explanation of "tagging":

When you tag someone, you create a link to their timeline. The post you tag the person in may also be added to that person's timeline. For example, you can tag a photo to show who's in the photo or post a status update and say who you're with. If you tag a friend in your status update, anyone who sees that update can click on your friend's name and go to their timeline. Your status update may also show up on that friend's timeline.
When you tag someone, they'll be notified. Also, if you or a friend tags someone in your post and the post is set to Friends or more, the post could be visible to the audience you selected plus friends of the tagged person.

Well, not only did the court poo-poo the notion that this "tagged" non-party information is private, it went the next step and concluded that photos in which a responding party is tagged are relevant, and should be produced because the tag places them within that party's "possession, custody, or control."

Therefore, next time you request social media as part of discovery, make sure that you ask for "tagged" information. Also, anticipate that your savvy adversary may do the same. Consequently, remind your client that, to the extent possible, relevant tagged information should be preserved when litigation is reasonably anticipated and later produced if responsive to a document request.

(h/t @SaraJodka)

June 10, 2013

The ethical tightrope of social media as a litigation tool

Savvy lawyers today use social media to mine and collect important data about litigants. But cross that line from savvy to shady, and you may find yourself in deep do-do.

(Kinda like the blow-out I encountered when I reached inside the back of my youngest's wetsuit at the pool this weekend to check his diaper. But different. And TMI. Anyway...)

James McCarty of the The Plain Dealer reported here last week that an Ohio prosecutor was fired for pretending to be a woman in a Facebook chat with an accused killer's alibi witnesses in an attempt to persuade them to change their testimony.

The former prosecutor told The Plain Dealer, "I think the public is better off for what I did." 

His employer vehemently disagreed.

"This office does not condone and will not tolerate such unethical behavior. He disgraced this office and everyone who works here."

Not being a criminal lawyer, I do not know how the rules of ethics that govern my practice cross over. But rest assured that chicanery like this will likely earn a civil litigator an ethics charge.

Remember last year, when I posted here about two NJ defense lawyers who were charged with violating ethics rules governing communications with represented parties. The charges arose after a paralegal for the two lawyers allegedly friended an attorney-represented plaintiff in a personal injury case to get additional information to undermine the plaintiff's claims. Each lawyer disclaimed any knowledge of Facebook's privacy settings.

My suggestion to you, as it was back then, is to get familiar with social media as a litigation tool. The lesson is also the same: always consider the ethical implications of your actions, whether offline or online. 

And ignorance -- of social media or these rules of professional conduct -- is no excuse.

April 2, 2013

Tips from Facebook on getting discovery of a plaintiff's Facebook page

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I'm a little late to the game on this case (Gatto v. United Airlines). It's about a personal injury case in which the defendant sought discovery of a the plaintiff's Facebook page. Yadda, yadda, yadda, plaintiff deletes his Facebook page and the court sanctions the plaintiff.

But here's the part I like:

While Facebook did respond to the subpoena served upon it, Facebook objected to providing certain information related to Plaintiff's account due to concerns regarding the Federal Stored Communications Act. Facebook instead recommended that the account holder download the entire contents of the account as an alternative method for obtaining the information. Defendants allege that this issue was discussed with the Court during a telephone status conference on January 6, 2012, where Plaintiff's counsel advised that he would be willing to download the account information and provide a copy to the parties. Defendants allegedly agreed to Plaintiff's proposal, with the condition that Plaintiff would also provide a certification that the data was not modified or edited since the December 1, 2011 settlement conference.

So, if you want discovery of the contents of a litigant's Facebook account, don't mess around with subpoenas to Facebook and don't demand Facebook passwords. Instead, lay the proper foundation (i.e., establish that there exists information on a litigant's Facebook page that is likely to lead to the discovery of admissible evidence) and make a download your information request.

March 12, 2013

100% pure settlement offer? If not, it may be ADMISSIBLE ... AT ... TRIAL!

pointbreak.jpgMost parties (and their attorneys) expect that settlement communications are not admissible at trial. There's even a federal rule of evidence on this subject. However, a federal court recently recognized an exception. But, with all due respect to the United States District Court for the District of New Jersey, the opinion is a little dry. 

So, after the jump, I spiffed it up a bit -- Point Break style, brah -- with a few takeaways for practicing attorneys.

This is your wake-up call.

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November 14, 2012

Employment Law Blog Carnival: Hollywood Casting Call Edition

Casting CatsWelcome everyone to the Employment Law Blog Carnival: Hollywood Casting Call Edition.

[Editor's Note: The original theme for this post was the "Employment Law Blog Carnival: Sex, Drugs, and Rock & Roll Edition." I had this bright idea to begin by cutting and pasting the lyrics to Guns N' Roses' "My Michelle," and, let's just say I bailed after the first line.]

So that leaves us with Plan B, where, after the jump, I have aggregated some of the best, recent posts from around the employment-law blogosphere and fit them together into a single theme: an open casting call.

Because just the other day, this theme came to me after waking from a Codeine/Claritin-D/Mucinex DM-induced slumber, in which I dreamt about casting a recent post of mine -- the one where an employee lost out on an FMLA retaliation claim when her employer fired her after finding Facebook photos of her drinking at a local festival -- while on FMLA. My movie will star Kim Kardashian, in her silver screen debut, as the employee. And Alan Thicke, who played Dr. Jason Seaver on "Growing Pains," could play the company decision-maker. We'll call it "FML Aye Yai Yai!"

[Editor's NoteI'm throwing Thicke a bone here. Don't you think? According to IMDB.com, he just finished production on "Fugget About It", in which ex New York mobster Jimmy Falcone joins the Witness Protection Program and is relocated, with his family, to Regina, Saskatchewan, Canada. Fugget about it, indeed.]

So that's the idea. More great posts and imaginative casting decisions, after the jump...

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November 13, 2012

That's what he said: Attorney Tips for Seeking Social Media Discovery

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I'm gearing up to host the Employment Law Blog Carnival on Wednesday, so I'm mailing it in today with a quick shout out to Venkat Balasubramani posting over at Eric Goldman's Technology and Marketing Law Blog.

Admittedly, I have fallen behind on updating you, my loyal readers, on the world of social media and discovery. Mostly, because the most recent jurisprudence has been from outside of the Pennsylvania and everything pales in comparison to this great Commonwealth. Except, most recently, for the Philadelphia Eagles.

Speaking of which, have you heard this one?

At divorce court, a family is eagerly waiting for the judge to grant custody of little Johnny. The judge asks Johnny, "Do you want to live with your dad?" Johnny replies, "No, he beats me!" So, the judge asks, "Johnny, do you want to live with your mommy?" Johnny says, "No, she beats me too!" Exasperated, the judge asks, "Then with whom do you want to live?" To which Johnny replies, "The Philadelphia Eagles. They don't beat anyone!"

Boy, do I have a tendency to get sidetracked. Anyway, to get my attorney-readers caught up on how to get access to litigant social media pages, check out Venkat's article here.

September 11, 2012

Court grants access to plaintiff's social media in discrimination case

lockandkey.jpgMany times on this blog (e.g., here, here, and here), I've discussed the discovery of a plaintiff's social media information in pending litigation. More often than not, these issues arise in personal injury actions where the defendant believes that the plaintiff's injury isn't as a severe as he claims it to be. So, it seeks access to plaintiff's Facebook information where it believes it will find pictures of the plaintiff boozing or frolicking or what-have-you.

Although less common in employment discrimination cases, from time-to-time, social media discovery issues do crop up. I'll discuss a new one decided late last month and offer some related tips for employers after the jump...

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February 29, 2012

You can't get Facebook login info based on a smiling profile pic

smileyface.jpgI got this as a Google Alert on Monday. The case is Davids v. Novartis Pharmaceuticals Corp. Allow me to set the stage for you.

  • Plaintiff sues, claiming ongoing suffering from osteonecrosis of the jaw (if you click the link, don't look at the picture on the right. Ewwwww)

  • Defendant corporation realizes that plaintiff has a Facebook account and serves a request for production of Facebook documents.

  • Plaintiff produces only those documents that are available publicly (i.e., those to which access is not otherwise restricted through Facebook privacy controls)

  • Not satisfied with the production, defendant moves to compel plaintiff to turn over her Facebook login information

The basis for the motion?

Defendant argues that Plaintiff's log-in information is discoverable because statements or pictures on her Facebook page relate directly to her claim of ongoing suffering from osteonecrosis of the jaw. Defendant's claim is predicated on Ms. Davids' profile picture, in which Defendant claims she is smiling. Defendant did not inquire about Ms. Davids' social networking activity at her deposition. (my emphasis)

Sounds like someone didn't read my chapter in Think Before You Click. Comparing the situation here to cases from PA,  NY, and another from NY the court denied the motion to compel:

Defendant's argument that Plaintiff smiling in her profile picture on Facebook satisfies its burden in this motion to compel is without merit. Even if Plaintiff is smiling in her profile picture, which is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff's account.

If only the Defendant had laid a better foundation with additional discovery as to the overall scope of what the plaintiff had in her Facebook account, this could have ended differently.

January 25, 2012

You can't "rummage at will" through employee Facebook accounts

fishing.jpgWell, at least that's what a federal court recently told a defendant-employer in this ruling.

In Tompkins v. Detroit Metropolitan Airport, the plaintiff suffered a slip-and-fall and later claimed back and other injuries. She sued her employer, who subsequently demanded that Tompkins provide full access to her Facebook account. Acknowledging that Facebook information that a user shares only with a few Facebook friends may still be discoverable, the United States District Court for the Eastern District of Michigan, emphasized that there are limits to the Facebook discovery that a party may pursue:

[M]aterial posted on a "private" Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. [T]here must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.

As I've discussed on this blog many times before (e.g., here and here) employers may not engage in the proverbial fishing expedition, in the hope that there might be something of relevance in a plaintiff's Facebook account. The far better practice is to first lay a foundation that the social-media account may contain relevant information and then pursue that information or, if you're feeling lucking, full access to the account.

(h/t: e-Discovery Case Law Update)

Image credit: frank.itlab.us

January 16, 2012

PA remains a hotbed of social-media discovery disputes

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I've been slacking, folks.

Not since November have I blogged about a defendant's motion to compel a motion to compel an individual's social-media content. Since then, several more Pennsylvania courts have weighed in on this burgeoning area.

I'm sorry to each and every one of you. I have let you down. Will you ever stop judging forgive me? 

Oh, let's kiss and make nice. I'll get you caught up on the social-media-litigation goings-ons after the jump...

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November 21, 2011

Can you access an ex-employee's Facebook posts if she sues?

laddersky.jpgWhat a whirlwind 12 months it's been for Edith Employee! Or, should I say, Edith "former" Employee?

Last year, she was an employee for ABC Company. This year, she is suing ABC for sexual harassment. Among other things, Edith claims damages for physical and psychological injuries, including the inability to work, anxiety, post-traumatic stress disorder, and the loss of enjoyment of life.

And, right now, we find the parties entrenched in some scorched-earth discovery. ABC Company has just requested "all of plaintiff's Facebook records compiled after the incidents alleged in the complaint, including any records previously deleted or archived."

Can ABC do that? Will Edith have to turn over all of these records? The answer follows after the jump..

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September 29, 2011

Got chutzpah? Try scheduling a deposition on Rosh Hashanah.

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Today is Rosh Hashanah (ראש השנה), the Jewish New Year. I'm Jewish. So, I'm not taking a deposition today. And if you are involved in a case with Jewish parties or attorneys, you shouldn't be either.

However, according to this article, these plaintiff's attorneys didn't get the memo. So, defense counsel filed this motion. And the Court entered this Order, rescheduling the deposition and sanctioning the plaintiff's attorneys "in an amount to be determined."

Oy vey and L'shanah tovah.

Image Credit: torahmusings.com

h/t Above the Law and South Florida Lawyers

July 12, 2011

Fact or Fiction: A "general release" settles all discrimination claims

Welcome back to "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post". But before I dispense with the brevity, allow me to pat myself on the back as, yesterday, both the ABA Law Journal and the Wall Street Journal recognized one of my recent blog posts.

***A-thank you. Thank you very much. You're all too kind.***

On the heels of this case from the Second Circuit that I read about yesterday, I figured that today we should discuss releases. Cue the music...

Let's begin with a hypothetical. Robert Rank-And-File has sued his former employer, Pennsylvania-New Jersey-Delaware, Inc., asserting various discrimination claims against the company (race, age, retaliation). After months of scorched-earth litigation, the two sides agree to settle. Pennsylvania-New Jersey-Delaware, Inc. prepares a settlement agreement which provides that in exchange for a settlement sum, Robert agrees to release all claims against the company. The agreement even includes the language, "THIS IS A GENERAL RELEASE."

Guess what, folks? If that is the extent of the release language, then Pennsylvania-New Jersey-Delaware, Inc. likely just funded the balance of Robert's age discrimination action against the company because Robert has not released his age-bias claim.

How could that be? Well, in 1990, Congress amended the Age Discrimination in Employment Act (ADEA) to impose specific requirements for releases covering ADEA claims, so that a person waiving rights under the ADEA would do so in a manner that is both "knowing and voluntary." In order for an ADEA waiver to be both "knowing and voluntary," it must contain seven elements:

    1. A waiver must be written in a manner that can be clearly understood. EEOC regulations emphasize that waivers must be drafted in plain language geared to the level of comprehension and education of the average person eligible to participate. So dump the legalese and technical jargon. 
    2. A waiver must specifically refer to rights or claims arising under the ADEA. EEOC regulations specifically state that the waiver must expressly spell out the Age Discrimination in Employment Act by name.
    3. A waiver must advise the employee in writing to consult an attorney before accepting the agreement. This is an easy one to take for granted if you know that the employee has already retained counsel. But, you still need it in the agreement.
    4. A waiver must provide the employee with at least 21 days to consider the offer. If the employee wants to sign the agreement before Day 21, that's fine. But, if material changes to the final offer are made, the 21-day period starts over. (Note: if a waiver is requested in connection with an exit incentive or other employment-termination program offered to a group or class of employees, the individual gets 45 days in which to consider the agreement).
    5. A waiver must give an employee seven days to revoke his or her signature. Whereas, the employee may waive the 21-day requirement above by returning a signed a agreement before Day 21, the 7-day revocation period cannot be changed or waived by either party for any reason. 
    6. A waiver must not include rights and claims that may arise after the date on which the waiver is executed. This provision bars waiving rights regarding new acts of discrimination that occur after the date of signing, such as a claim that an employer retaliated against a former employee who filed a charge with the EEOC by giving an unfavorable reference to a prospective employer.
    7. A waiver must be supported by consideration in addition to that to which the employee already is entitled. For example, withholding an employee's last paycheck on the condition that he/she agrees to release any potential age discrimination claim will not work.

Although not technically a requirement, a best practice when settling the claims of a current or former employee is to call a capable employment-law attorney.

June 8, 2011

Supreme Court limits an employer's ability to recoup attorney's fees

Thumbnail image for Supreme Court.jpgIn an employment discrimination action asserted under federal law, an employee-plaintiff may recover a reasonable attorney's fee if the plaintiff prevails. So too may an employer-defendant recover fees if it prevails and the court determines that the plaintiff's suit is frivolous.

But what happens if an employee-plaintiff asserts multiple claims against an employer-defendant and only some of them are deemed frivolous? What, if anything, may the defendant recover in attorney's fees?

The answer after the jump...

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May 18, 2011

Court bars Facebook "friending" in discovery

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If, in a pending civil action, the defendant requests to Facebook "friend" the plaintiff in order to learn more about the plaintiff's claims, must the plaintiff accept the friend request?

This is precisely the issue that a PA Court of Common Pleas recently faced.

So, what happened? Find out after the jump.

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