In the Eye of the Beholder: The Relevance of Facebook Evidence

Social networking litigation will be written by the end users of those websites.  In Bass v Miss Porter’s School, the Defendant school sought from the Plaintiff discovery of her alleged teasing and taunting on Facebook.  Bass v. Miss Porter’s Sch., 2009 U.S. Dist. LEXIS 99916 (D. Conn. Oct. 27, 2009).

The Plaintiff objected to the Facebook discovery request on the following grounds:

1) The Facebook information was “irrelevant and immaterial” and was “not reasonably calculated to lead to the discovery of admissible evidence;” and

2) “[Plaintiff's] ability to produce responsive documents was severely curtailed by Defendants’ actions in disconnecting the Plaintiff’s access to her school email and intranet access prior to the filing of this lawsuit.” Bass, at *2.

After subpoenaing Facebook, Facebook agreed to produce “reasonably available data” from the Plaintiff’s profile from January 1, 2008 to May 1, 2009.  Bass, at *2.

The Court ordered the Plaintiff to produce 1) all responsive Facebook discovery to the Defendant and 2) everything produced from Facebook to the Court for in camera review.  Bass, at *3.

The resulting production was 100 pages (apparently printed out) to the Defendant and 750 pages produced to the Court.  Bass, at *3.

The Court was noticeably frustrated with the Plaintiff’s attorney.  The Court stated the production offered “no guidance as to the grounds or basis on which her counsel made the determination of which documents to produce to Defendants.” Bass, at *3.

The Court took direct aim Plaintiff’s claim the Facebook discovery was irrelevant after reviewing the Facebook production by date, sender/recipient and subject matter.  Bass, at *3.  The Court found:

The selections of documents Plaintiff disclosed to Defendants and those she referred for in camera review reveal no meaningful distinction. Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the content’s posting. Therefore, relevance of the content of Plaintiff’s Facebook  usage as to both liability and damages in this case is more in the eye of the beholder than subject to strict legal demarcations, and production should not be limited to Plaintiff’s own determination of what maybe “reasonably calculated to lead to the discovery of admissible evidence.” Bass, at *3-4.

The Court overruled the Plaintiff’s objection to producing Facebook discovery, especially in light of the fact the in camera production contained communications clearly relevant to the lawsuit.  Bass, at *4.

Bow Tie Thoughts

This is a wonderful short and sweet opinion on using Facebook information in discovery.  The Court’s recognition that Facebook usage can reflect the state of mind of a user was excellent to see.  The only area somewhat concerning about the opinion was the fact the Facebook discovery was printed and not maintained in a digital form of production.

A Helicopter Parent’s Weapon of Choice: Facebook Photos

Laningham v. Carrollton-Farmers Branch Indep. Sch. Dist., 2009 U.S. Dist. LEXIS 86305 (N.D. Tex. Sept. 17, 2009) is a factual intense case of a cheerleader claiming unconstitutional gender bias on alleged cheerleader on cheerleader sexual harassment, which deprived the Plaintiff of her educational opportunities.

The Plaintiff lost at summary judgment, which was upheld on appeal. 

The facts are strange and protracted, with a mother being very involved in her daughter’s cheerleading.   There were letters, emails and meetings over perceived wrongs by the other cheerleaders on the squad, and attempts to remove the other girls from cheerleading.  Laningham, 9-13. 

One of the Plaintiff’s mother’s many complaints was an aerial bombardment with private Facebook photos of the cheerleaders at a non-school event.  Laningham, 10.  These photos did get the cheerleaders suspended from cheerleading for one week for unbecoming conduct.  Id.  Ironically, a similar disciplinary action took place over a Facebook photo with the Plaintiff, resulting in her one week suspension.  Laningham, 12.

The teenage drama of this case is not relevant to metadata, form of production battles, or other e-discovery, other than one simple fact: Someone made a Federal case with Facebook photos (for at least one part of the lawsuit). 

Social Networking evidence will continue to work its way into litigation.  There are over 1,191,373,339 monthly visits to Facebook and 810,153,536 monthly visits to MySpace.  Attorneys need to recognize these sources of evidence, consider how to preserve them and how they need to be included in initial disclosures. 

There is a more fundamental lesson: Be careful what you post.

How to Get Kicked Out of Law School on Facebook

Activities on Facebook, YouTube or any social networking site can land you in trouble.  People do not have a blank check to do anything online.  Key v. Robertson, 2009 U.S. Dist. LEXIS 51092, (E.D. Va. June 5, 2009) is an example of this situation.

When Facebook Goes to a Law School with Standards of Personal Conduct

A second year law student took a video clip of the law school chancellor scratching the side of his head on YouTube.  When paused at the right time, it looked like the chancellor was giving the middle finger.  The student took a screen shot of the video clip and made it his profile photo on Facebook.  Key, 1-3. 

The law school found out about the student’s profile photo and asked him to remove it because it violated the “Regent Standard of Personal Conduct’s prohibition against profane or obscene behavior.” Key, 3-4

The student took the photo off his Facebook profile.  However, the student thought he could use the photo in the “appropriate academic context” because the Regent’s policy included an “academic” exception.  Key, 3-4.

The student posted the photo on the law school listserv, which was used by school staff, faculty and law students.  Key, 4.

As one can imagine, this did not go over well.  The student was given the choice of posting an apology for posting or submitting “a legal brief in support of his contention that Regent’s disciplinary actions against him violated the American Bar Association’s (“ABA”) accreditation standards for law schools.”  Key, 5.  The student chose valor over grace and decided to fight.

The case got uglier, descending into the student’s legal fight and other students filing complaints they were afraid of the student.  The facts of this case took place around the time of the Virginia Tech shootings and people were understandably concerned about their safety.  Key, 5-16.

The school wanted the student to see a mental health professional because of the complaints, which the student refused.  The student was ultimately suspended for a year for bringing a stun gun on campus.  Key, 5-16.

Failed First Amendment Arguments

The Student Plaintiff claimed his First Amendment rights were violated by the private law school. The Plaintiff claimed there was a “state action” in that the private law school chilled his speech, because the school received direct and indirect Federal and state funds.  Key, 31.

A school receiving public funds does not make a private school’s decisions a “state action.” Key, 31-32.  As such, the Plaintiff’s First Amendment and other Constitutional arguments failed.  Key, 32.

Bow Tie Thoughts

People can get into trouble for online conduct.  While the facts of this case become extreme, the initial event of posting a photo happens all the time.

Juror Misconduct: When the Judge Says Don’t Talk About the Case, that Includes Facebook & Twitter

Who knew 140 characters, a few status messages, and tags could play a big role in a court opinion hitting juror misconduct? 

It is not a huge surprise in a criminal case involving politics, money and fraud. 

A Little Background: The Criminal Case against the Defendants

Multiple Defendants were charged with 141 counts of the following:

(1) Fraud and conspiracy to defraud the Pennsylvania Senate;

(2) Fraud and conspiracy to defraud Citizens Alliance for Better Neighborhoods (“Citizens Alliance”);

(3) Conspiracy to defraud the United States Internal Revenue Service (“IRS”);

(4) Fraud related to the Independence Seaport Museum (“ISM”); and

(5) Obstruction of justice and conspiracy to obstruct justice. United States v. Fumo, 2009 U.S. Dist. LEXIS 51581 (E.D. Pa. June 17, 2009)

To keep things interesting, one Defendant was a Pennsylvania State Senator.

The “Honorable” Senator was found guilty of 137 of the 139 charges against him.

Don’t Tweet the Trial

The Defendants claimed they were entitled to a new trial because one juror had Facebook status messages and Twitter “Tweets” during the trial.  Fumo, 184-185. 

Here is the short version of what happened:

One of the jurors worked in the HR department of a law firm.  Fumo,192. He also was a user of Facebook, Twitter and had a personal blog. 

Like many Web 2.0 savvy users, he would post status messages and “Tweets” about his day. These included messages about the trial, provided you knew what the juror was talking about, since he did not disclose any facts. 

Jury deliberations were under full steam…and a TV story ran on the trial on March 15, 2009.  Fumo,183-184.

The Defendants learned from the news report that one juror made online postings about the trial.  The Juror also saw the headline for the report and quickly deleted his Facebook and Twitter postings out of fear.  Fumo,183-184. 

The Defendants in turn immediately filed a motion alerting the Court to disqualify the juror.  Fumo,184. 

Just What Did the Juror Say?

Twitter Postings

The juror’s one Twitter posting was simply: “This is it … no looking back now!” Fumo, 193-194. 

Facebook Postings

Below is the Court’s summary of the Facebook Status Messages:

Sept. 18, 2008 (apparently upon continuance of trial judge due to judge’s illness): “… is glad he got a 5 week reprieve, but could use the money …”

Jan. 11, 2009 (apparently referring to the end of the government’s case): “… is wondering if this could be the week to end Part 1?”

Jan. 21, 2009: “…wonders if today will really be the end of Part 1???”

Mar. 4, 2009 (conclusion of closing arguments): “…can’t believe tomorrow may actually be the end!!!!”

Mar. 8, 2009 (Sunday evening before second day of deliberations): “…is not sure about tomorrow …”

Mar. 9, 2009 (end of second day of deliberations): “…says today was much better than expected and tomorrow looks promising too!”

Mar. 13, 2009 (Friday after completion of week of deliberations): “Stay tuned for the big announcement on Monday everyone”

 Fumo, 194-196.

No RT’s from the Defendants

Defense Counsel wanted the juror ”removed” from the trial, to borrow Twitter language.  They claimed the juror’s “behavior and his ‘utterly incredible testimony’ undermined his impartiality as juror.” Fumo,186-187.

The Court Tagging the Juror’s Comments

The Court held an in camera review one day after the news report.  Fumo,185. 

The Court was extremely supportive of the juror’s integrity and stated the following:

I just – - honestly, want to make sure my thoughts are on the record about this guy. My take on him is entirely different. My take on him is this is one conscientious guy trying very much to comply with all the rules and regulations that I’ve established more so then I would ever imagine that a juror would do. And I think that, you know, I’ve heard him and I don’t have any trouble with keeping him on the jury. Fumo, 185-186

The Court & Web 2.0

To the Court’s credit, the Judge included the “About” pages for both Facebook and Twitter.  Footnote 27 nicely summarizes Facebook’s Mission Statement “to give people the power to share and make the world more open and connected.”  Fumo, 184, fn 27. Additionally, the Court summarized Twitter as “a real-time short messaging service that works over multiple networks and devices.”  Fumo, 185, fn 27.

The Court’s RT on “This is it … no looking back now!”

The Court found that the juror’s ONE Tweet suggested “the jury’s decision had been made and that it was too late to influence him.”  Fumo, 194.  Moreover, the message was “so vague as to be unclear.” Fumo, 194.

The Tweet had no details on the case facts or showed any favor/disfavor to anyone in the criminal trial.  Fumo, 194.

Facebook Settings & Status Messages

The Court’s analysis of the Facebook Status Messages included reviewing the juror’s privacy settings.  The juror belonged to the 600,000 member Philadelphia network.  Anyone in this network could view his status messages.  Fumo, 195. 

The juror’s profile was configured so only “friends” could post comments on his profile.  “Friends” could either post messages on the juror’s “Wall” or send a Facebook Message.  Fumo, 195-196. 

Defense Counsel questioned the juror on for whose benefit he was writing his status messages.  The juror explained that his postings were:

“…more for my benefit to just get it out of my head, similar to a blog posting or somebody journaling something. It’s just to get it out there. And that’s what a lot of Facebook … it’s just to get — a way to electronically gets thoughts off your mind.”  Fumo, 196.

The Juror was questioned on whether any “non-friends” ever contacted him or did anything to influence his thinking on the case.  The juror answered:

“No. Because – - again, because they have to be someone that I befriended in order to be able to post on the wall. Whether or not they can see it, I’m not sure. But I know they can’t post on it without being one of my friends.” Fumo, 198-199.

The questioning of the juror was very extensive.  Mark Zuckerberg, founder of Facebook, would have been very proud of the juror’s explanation of Facebook’s appeal during the Defense questioning.  The juror described that “some people use [Facebook] for connection between other people. I use it, personally, as a way to journal my thoughts and get everything out.” Fumo, 199-200.

The Court’s Findings

The Court found no evidence that the juror was influenced by his Facebook postings.  There was no evidence “random individuals” contacting him.  Moreover, there was no evidence the juror’s “opaque” postings were detailed enough for members of the Philadelphia network to know what the juror was talking about. Fumo, 201.

Bow Tie Thoughts

Given the number of iPhone, BlackBerry and other smart phone users who can be in a potential jury, lawyers and judges should include “No Twitter, Facebook or social networking” in the jury instructions.

Producing Social Networking Profiles: What Court has Jurisdiction?

A Facebook user in Massachusetts was facing criminal charges in Massachusetts for criminal harassment and threats to commit a crime from Facebook messages.  Skerry, 2009 U.S. Dist. LEXIS 38804, 1-2 (D. Cal. 2009).  The Petitioner’s defense was that someone had improperly used his account to send the Facebook messages.  Skerry, 4.  The Petitioner sought the emergency deposition of Facebook’s “recorder keeper” because of the concern Facebook periodically purged its information system.  Skerry, 2-4.   

The petitioner’s criminal defense attorney emailed Facebook for ESI pertaining to the petitioner’s profile.  Facebook replied they were creating a preservation order, but they required a formal subpoena to produce any ESI or Documents.  Skerry, 2. 

The Petition filed a pro se motion to compel a deposition of Facebook’s record keeper to perpetuate testimony before any action been filed according to Federal Rule of Civil Procedure 27(a). 

The Petitioner had two major problems: 1) There was no adverse party in the Northern District of California and 2) The Petitioner did not seek to perpetuate testimony “about any matter cognizable in a United States court.”  Skerry, 4

The Petitioner fell victim to the United States District Court for the Northern District of California not having any Federal jurisdiction.  The case was a Massachusetts criminal case with a Massachusetts victim of the alleged crime.  There was no Federal Question for the Federal Court to hear the case, but rather a state criminal action from Massachusetts. Skerry, 4-5.  Since the Court did not have jurisdiction, there was no relief to grant. 

While the Court did deny the motion, the Federal Magistrate Judge did not state any opinion on what a California state court would do with such a request.  Skerry, 5-6. 

The Petitioner’s issue goes back to Marbury v. Madison: A Federal Court needs jurisdiction to hear a case.  When dealing with social networking sites based in one state that provide services to the entire country, the issues of proper venue, choice of law and even state vs Federal court must be considered when seeking legal relief.

Status Messages and Client Confidences

Web 2.0 marketing is a highly effective way for lawyers to promote their services to prospective clients.  Web 2.0 marketing is leveraging collaborative programs hosted over the Internet, such as social networking sites or Wikis, to provide content highlighting an attorney’s services.  This form of marketing could also result in disaster if used incorrectly. 

Client Confidences: The Work Product Doctrine and the Attorney Client Privilege

The sailor in me remembers Hickman v Taylor 329 U.S. 495 (U.S. 1947) because it had a tug boat that sank.  The lawyer in me remembers it for the Work Product Doctrine.

 

For those not familiar with the Work Product Doctrine, the Doctrine protects documents prepared in anticipation of litigation from discovery, including mental impressions, conclusions, opinions, or a lawyer’s legal theories.  Chemtech Royalty Assocs., L.P. v. United States, 2009 U.S. Dist. LEXIS 27696 (M.D. La. Mar. 30, 2009).  The Work Product Doctrine is codified by Federal Rule of Civil Procedure 26(b)(3).  The Doctrine covers material prepared by a party and a party’s representative, which includes lawyers, consultants or agents.  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), citing FRCP 26(b)(3). 

The Attorney Client Privilege is a different concept.  The Attorney Client Privilege protects “confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such disclosures.”  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), (citations omitted).  Additionally, the privilege applies “only [to] those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege.” Id.

California law also requires a lawyer to, “…maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Cal Bus & Prof Code § 6068

Additionally, attorneys should realize they are responsible for their staff, consultants, non-lawyers, and others also using technology. ABA Model Rule of Professional Conduct, Rule 5.1, Rule 5.2 and Rule 5.3 outline these responsibilities.

Enter Web 2.0 Marketing

There is the potential for disclosure of information protected by both the Work Product Doctrine and the Attorney Client Privilege on social networking sites such as Twitter or Facebook.  These services are popular Web 2.0 sites where users can create public profiles, invite other users to follow their daily updates, micro-blogging and other information sharing.  It does not take much to imagine someone new to Web 2.0 marketing disclosing too much information to their “friends” or “followers.”

Here is how the risk of disclosure is possible: a Facebook user posts a status message they deem harmless, such as “I just landed ‘Company A’ as a client and have a bunch of back-up tapes to restore.”

Does this disclose any mental impressions or strategy about the case?  Probably not, but it is flirting with disclosure.  Moreover, Company A would probably not be thrilled with their lawyer announcing their actions in a lawsuit to 300 “friends.”

After reviewing data from imaged hard drives, the same individual posts the status message, “Wow, they really blew preserving their emails.” 

If the client is somehow identifiable, there is a problem, because a mental impression of the client’s ESI is being disclosed.  While the “friends” are probably in no way related to anyone in a lawsuit, disclosing a client confidence to one person is one too many. 

This Does Not Mean Don’t Market!

This is only a call to action for common sense.  Lawyers, consultants and their agents should exercise reasonable care in promoting their services.  A status message of “Working on a Summary Judgment Motion” or “Preparing for the CMC” or “I settled the case!” is not disclosing any legal theory or confidence.  Moreover, using Facebook with the JDSupa application to show published documents can be very effective marketing.  However, saying a client name, plus a specific argument or confidence in a status message, might put a tech savvy lawyer in hot water. 

Web 2.0 empowers lawyers to promote their services and demonstrate their knowledge in ways few people could imagine when Silicon Valley engineers were teenagers building computers in the 1970s.  Lawyers marketing their services on Facebook, Twitter and other social networking sites should exercise reasonable care to protect client confidences.  While this may seem like stating the obvious, the potential for someone saying too much in a status message is very real.

When Contract Law Collides with Social Networking & Online Movie Rentals

Every now and then, there comes a case that gives me law school flashbacks.  Professor Rohwer, my old Contracts professor, this one’s for you. 

Harris v. Blockbuster, 2009 U.S. Dist. LEXIS 31531 (N.D. Tex. Apr. 15, 2009) involves Blockbuster allegedly violating the Video Privacy Protection Act.  Blockbuster Online (an online video rental service) entered into a contract with Facebook that caused rental information for Facebook-Blockbuster Online users to be published to all of the users’ Facebook friends via Facebook’s Beacon application.  Harris, 1-2. 

The Plaintiffs apparently did not like their rental history being broadcast to their Facebook friends. 

The Plaintiffs claimed Blockbuster Online violated the Video Privacy Protection Act. The VPP prohibits a video service provider from disclosing a customer’s personally identifiable information without their written consent.  The VPP Act allows for liquidated damages of $ 2,500 for each violation.  Harris, 2.

The Defendants invoked a binding arbitration provision, pursuant to the contractual “Terms and Conditions.”  The Terms and Conditions were a “clickwrap” style agreement, which included binding arbitration and a waiver of any class action litigation against Blockbuster.  Harris, 4. The online contract stated, in relevant part:

Blockbuster may at any time, and at its sole discretion, modify these Terms and Conditions of Use, including without limitation the Privacy Policy, with or without notice. Such modifications will be effective immediately upon posting.

The issue before the Court was whether the online contract “Terms and Conditions” were illusory and thus unenforceable.  Harris, 3-4.  The Court found the online contract illusory. 

For those flashing back to first year Contracts, a contract must be supported by consideration, where something of value (such as a peppercorn) is received by a promisor from a promisee.  Black’s Law Dictionary.  If there is no consideration, the contract is illusory and unenforceable.  Harris, 4 and Black’s Law Dictionary.

The crux of the Plaintiffs’ arguments were that since Blockbuster reserved the right to modify the Terms and Conditions at their “sole discretion” at “any time” to be effective immediately on their site, the contract was thus illusory.  Harris, 6-7. 

The Court found the contract was illusory because Blockbuster had the power to unilaterally change the contract whenever they wanted to do so. The only “limit” was the new terms would not be effective until posted online.  Harris, 6-7. 

Online “clickwrap” agreements can include forum selection clauses, choice of law provisions and other “unilateral” agreements.  The issue of illusory contracts will continue to be litigated and will probably be the topics of future Contracts hornbooks.

This case also raises an interesting question: just what will the discovery look like?  Will the Plaintiffs produce screen shots of their published movie rental history to show their injury?  Will the Plaintiffs request databases from the Defendants?  These sorts of questions will continue to come up as Web 2.0 litigation continues.