Denial of “Twitter Appeal”

The New York Court of Appeals denied Nonparty Twitter, Inc.’s appeal in People v Harris as “academic” and moot, because the Tweets in question had been produced pursuant to the State’s subpoenas. New York v. Harris, 2013 N.Y. Misc. LEXIS 2039 (N.Y. Misc. 2013).

The case involved the prosecution of an Occupy Wall Street protestor and the DA’s subpoena to obtain the Defendant’s Tweets.

The Tweets were relevant to an anticipated Defense argument that the police forced the protestors onto the non-pedestrian part of the Brooklyn Bridge, instead showing it was planned by the protestors. People v Harris, 36 Misc. 3d 868, 876 (N.Y. City Crim. Ct. 2012).

Twitter actually changed their Terms of Service after the first ruling in the case over whether the Defendant had standing to challenge the subpoena, based on who “owned” the user’s Tweets. People v Harris, at *872.

Judge Matthew Sciarrino’s order has wonderful statements on modern litigation involving social media. Here are selected of highlights from his June 30, 2012 order:

If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist.  Those private dialogues would require a warrant based on probable cause in order to access the relevant information. 

People v Harris, 36 Misc. 3d 868, 874 (N.Y. City Crim. Ct. 2012).

In dealing with social media issues, judges are asked to make decisions based on statutes that can never keep up with technology. In some cases, those same judges have no understanding of the technology themselves (Stephanie Rabiner, Esq., Technologist, Do Judges Really Understand Social Media? http://blogs.findlaw.com/technologist/2012/05/do-judges-really-understand-social-media.html [May 9, 2012]). Judges must then do what they have always done – balance the arguments on the scales of justice. They must weigh the interests of society against the  inalienable rights of the individual who gave away some rights when entering into the social contract that created our government and the laws that we have agreed to follow. Therefore, while the law regarding social media is clearly still developing, it can neither be said that this court does not understand or appreciate the place that social media has in our society nor that it does not appreciate the importance of this ruling and future rulings of courts that may agree or disagree with this decision. In recent years, social media has become one of the most prominent methods of exercising free speech, particularly in countries that do not have very many freedoms at all.

People v Harris, at *877-878.

As the laws, rules and societal norms evolve and change with each new advance in technology, so too will the decisions of our courts. While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.

People v Harris, 878.

Bow Tie Thoughts

Just as a person’s eyes are a window to their soul, social media is a window into statements of future intent, state of mind and party admissions.

The evidence issues in social media can become complex, from “checking in” at location on a social media app being a present sense impression to layered hearsay with a video of a witness recorded on a smartphone at an incident, then shared by another declarant on their social media profile. Each declarant made an out-of-court statement that if offered in court would have to meet an exception to the hearsay rule (or somehow be non-hearsay).

The battle in most civil and criminal cases is not that social media is relevant, but what social media is relevant. A party cannot simply request a person’s entire social media profile. The entire profile is simply not likely to be relevant. It also smacks of an invasive fishing expedition. Moreover, who actually wants to read every status message from a person over a period of years?

The issue for many litigants is requesting specific postings over a set period of time, or a defined topic, or communications with others made over a posting. In effect, the requests must be narrowly tailored and relevant.

2012 Case Law Year-In-Review

2012 eDiscovery Case Law included everything from Tweets to Computer-Assisted Review. However, there was also a very basic theme that is hard to ignore: Cases should be about the merits. And for cases to be decided on the merits, attorneys need to educate themselves on electronic discovery so they know what to argue to a Judge.

Many 2012 cases focused on search terms search term efficiency, demonstrating undue burden, and proportionality, which all highlighted the need for attorneys to understand electronic discovery. Attorneys cannot competently represent their clients without understanding what technology is relevant in a case; the possible sources of electronically stored information; and what technology to use to review electronically stored information.

I discuss many of these cases in my Year in Review, available on the above YouTube link and on my podcast channel.

I wish everyone a very success 2013.

Feng Shui False Tweets

The Plaintiff, a professional Chicago interior designer, was the director of marketing, PR and e-commerce for the Defendant, a well-known interior designer. Maremont v. Susan Fredman Design Group, Ltd., 2011 U.S. Dist. LEXIS 26441, at *4 (N.D. Ill. Mar. 15, 2011).

After being injured in an accident, the Defendant impersonated the Plaintiff on Facebook and Twitter.  The Plaintiff sued and the Defendant brought a motion to dismiss.  Maremont, at *1-2.

The Factual Focal Point

The Plaintiff had a popular following on both Facebook and Twitter.  All social media messages had her image on them.  Additionally, the Plaintiff maintained a blog hosted on the Defendant’s blog.  Maremont, at *5.

The Plaintiff was hit by a car and hospitalized with extensive injuries, which included surgeries, physical rehabilitation and recovering in a wheel chair.  Maremont, at *5-7.   While in the hospital, she was told the Defendant were promoting themselves with the Plaintiff’s Facebook and Twitter accounts.  Maremont, at *6.

The Plaintiff told the Defendant to stop “impersonating” her online, because 1) it made it look like the Plaintiff had not been hurt badly and 2) she had returned to work. Maremont, at *6.

The Defendant continued impersonating the Plaintiff on both Twitter and Facebook. Id.

After several months of recovery, the Plaintiff learned the Defendant was still impersonating her on her social media accounts.  Maremont, at *7.   The Plaintiff changed her passwords on her accounts, which prompted the Defendant to text the Plaintiff.  Id. After the Plaintiff confirmed she changed her passwords to the Defendant, the Defendant and her employees stopped visiting or contacting the Plaintiff.  Id.

Accent Colors of the Law: Lanham Act, Right to Publicity & Common Law Right to Privacy

False Endorsement

The Court upheld the Plaintiff’s “false endorsement” claim under the Lanham Act.  Maremont, at *9-10.

A “false endorsement” is “…when a person’s identity is connected with a product or service in such a way that consumers are likely to be misled about that person’s sponsorship or approval of the product or service.” Maremont, at *9, citing, Stayart v. Yahoo! Inc., 651 F.Supp.2d 873, 880-81 (E.D. Wis. 2009).

The Court explained that the Plaintiff alleged sufficient facts to survive the motion to dismiss, because 1) she alleged she had a popular following on Twitter and Facebook related to her commercial work and 2) the Plaintiff was in commercial marketing when the Defendant used her social media accounts.  Maremont, at *10.

As such, the Court found the Plaintiff alleged a commercial injury based on the Defendant’s use of the Plaintiff’s Facebook and Twitter profiles.  Id.

Right to Publicity

The Plaintiff alleged the Defendant violated her rights under the Illinois Right to Publicity Act, because the Defendant did not have her written consent to use her likeness. Maremont, at *11.

The Defendant challenged the Plaintiff’s “right to publicity” claim as being untimely under state law, because the one-year statute of limitations had run from when the Plaintiff first learned of the use of her social media profiles.  Maremont, at *11.

The Court found the Plaintiff’s claim timely, because under the “continuing injury” doctrine, because of the several month period the Defendant used the Plaintiff’s social media profiles.  Maremont, at *13.  The Plaintiff filed her lawsuit within one year of her text message exchange with the Defendant about changing her passwords, which was the end of the alleged infringement.  Id. As such, the Plaintiff’s claims were timely.  Id.

Common Law Right to Privacy Claim

The Defendant was successful in the dismissal of the Plaintiff’s Common Law Right to Privacy Claim, because the Illinois Right to Publicity Act replaced common law causes of action.  Maremont, at *14.

The Plaintiff claimed two additional common law torts: 1) unreasonable intrusion upon the seclusion of another and 2) a claim based on publicity that reasonably places another in a false light before the public. Maremont, at *14.

The Court granted the motion to dismiss on the intrusion into her “digital life,” because the Plaintiff did not develop the argument whether such a claim is actionable.  Maremont, at *14-15.

The Plaintiff’s “false light” claim also failed, because she did not sufficiently allege actual malice or special damages.  Maremont, at *15.

Bow Tie Thoughts

We will see more cases involving the blending of personal lives and professional business development.  These issues present intriguing questions of law and electronic discovery challenges.

Consider an employer requiring their employees to use their personal social media profiles to promote the company.  Does that give an employer the right to highjack personal social media profiles if the employee is hospitalized?  How about if the employee leaves the company?

All of the discovery in this case is digital: Social Media and Text Messages.  Both are high transitory and can present preservation challenges.  Attorneys must consider social media in their electronic discovery planning, from collection and review.  While Outlook based email is very established, “cloud” based social media discovery cannot be ignored.

Identifying Defaming Defendants with Expedited Subpoenas on Social Networking Sites

The Plaintiffs in 1524948 Alberta Ltd. v. John Doe 1-50 claimed they were the victims of trademark infringement, trade libel, defamation and intentional interference with contractual relationships. The Plaintiffs claimed the unknown Defendants used a website “to publish allegedly “false, defamatory and infringing statements and to conduct other unlawful activity targeted at Plaintiff and its website…” 1524948 Alberta Ltd. v. John Doe 1-50, 2010 U.S. Dist. LEXIS 100482 (D. Utah Sept. 22, 2010).

The Plaintiffs sought expedited discovery from Facebook and Twitter to identify the Defendants, so the Doe Defendants could be served with the lawsuit. 

Discovery does not commence until there has been a Federal Rule of Civil Procedure Rule 26(f) conference. 

If a party is seeking expedited discovery before the Rule 26(f) meet and confer, the moving party has the burden of showing good cause. 

Good cause exists where there are claims of unfair competition, infringement or physical evidence may be destroyed with the passage of time. 1524948 Alberta Ltd., at *1-3.

The Court found good cause to grant the Plaintiffs’ request for expedited discovery.  1524948 Alberta Ltd., at *3.     The Court cited that infringement cases warrant expedited discovery.  Moreover, the Court noted that the discovery was transitory in nature and was required for the case to go forward.  1524948 Alberta Ltd., at *3-4.

The Court specifically ordered:

…Plaintiff may serve subpoenas upon those advertising networks as outlined in its motion to discover the identity of Defendants. These subpoenas may seek the “user data, including origination information, contact and payment information, to identify those Defendants directly responsible for running advertising on the BPAW website as well as the recipient of the revenues realized by BPAW as a result of those advertisements,” but the subpoenas shall not request any revenue amounts. At this time the court is not persuaded that the amount of money Defendants received from advertising is necessary for Plaintiff to discovery their identity.

1524948 Alberta Ltd. v. John Doe 1-50, at *4-5.

Bow Tie Thoughts

One justification for expedited discovery includes the loss of “physical evidence from the passage of time.”  1524948 Alberta Ltd., at *1-3.  The transitory nature of data being both prolific and fragile is conceptually the same as physical evidence being lost from the passage of time.  It should not be a surprise if expedited discovery is ordered as a matter of standard procedure for these sort of online tort cases.

Tweeting Contempt: Trademark Infringement on Twitter

The Plaintiff, an established 15-year-old moving company, brought a lawsuit against the Defendant for trademark violations, libel, and other unfair competition causes of action.  Tdc Int’l Corp. v. Burnham, 2010 U.S. Dist. LEXIS 4646 ( E.D. Mich. Jan. 21, 2010).

A settlement agreement was entered (after a default) requiring the Defendant to cease using the Plaintiff’s mark, including one of the Defendant’s domain names and other restrictions.  Id.

The Defendant was also required to donate money to a junior sailing program.  The settlement was codified as a court order.  Id.

None of that happened according to the agreement and order.  The Plaintiff brought a motion enforce judgment and an order to show cause for contempt. 

The Court found that the “most troubling” evidence of the Defendant’s contempt was the Defendant’s EXACT usage of the Plaintiff’s trademark on Twitter.  Tdc Int’l Corp., at *7. 

The Court’s findings included evidence from the Twitter profile, with the Plaintiff’s mark, that listed the Defendant’s domain name. Tdc Int’l Corp., at *7-8. 

The Court additionally relied on evidence from the Defendant’s Yelp.com and Squidoo.com profiles in establishing the Defendant’s contemptuous conduct.  Tdc Int’l Corp., at *7.

The evidence of contempt even included online testimonials on the Defendant’s services, including one posting made the day before the Plaintiff filed their motion.  Tdc Int’l Corp., at *8.

The Court ReTweeted the Plaintiff’s view of contempt and ordered the Defendant to appear in person to explain why he should not be held in contempt for violating the Settlement Agreement and Consent Judgment.  Tdc Int’l Corp., at *9. 

Bow Tie Thoughts

This case highlights the ease with which someone can engage in Trademark infringement on Twitter.  More importantly, it illustrates how savvy Courts are becoming with social media litigation.

e-Discovery Shorty Awards

The second annual Shorty Awards, honoring the “Best Producers of Short Real-Time Content” on Twitter, will be held in March 2010.  The Shorty Awards have an unofficial e-Discovery category for e-Discovery and Bow Tie Law is one of the nominees.  

There are many excellent electronic Discovery attorneys and professionals on Twitter.  Please help recognize their hard work by nominating them for a Shorty Award. 

If we generate enough activity, e-Discovery can become an official category for this year’s Shorty Awards. 

For more information, please visit http://shortyawards.com

Extra! Extra! No Tweeting in Court!

In United States v. Shelnutt, a member of the press requested the right to “Tweet” a criminal trial on Twitter.  The court denied the request pursuant to Federal Rule of Criminal Procedure Rule 53. United States v. Shelnutt, 2009 U.S. Dist. LEXIS 101427 (M.D. Ga. Nov. 2, 2009). 

Federal Rule of Criminal Procedure Rule 53 states, in relevant part:

“[T]he court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Shelnutt, at *2, citing Fed. R. Crim. P. 53

The Court held that the term “broadcasting” includes sending electronic messages contemporaneously from the trial, which the Court held includes Twitter.  Shelnutt, at *2-3.

First Amendment Concerns

The Court held the First Amendment was not violated by the prohibition of Twitter in the courtroom. 

The Court stated that Federal Rule of Criminal Procedure Rule 53 is well established as Constitutional.  Shelnutt, at *4.  Additionally, the Press has the right to attend the trial, listen to the evidence, evaluate the arguments and report on the proceedings.  As such, there is no restriction on the right to report on the criminal trial.  Shelnutt, at *4-5.  In short, these sound like “time, place and manner” restrictions on where the broadcasting of a trial can occur. 

Bow Tie Thoughts

This is a new spin on cameras in the courtroom.  Just as a judge would prohibit reporters setting up a broadcast booth in her courtroom (and thus creating a media circus where lawyers put on silly hats and do bad rhymes during closing argument), it is understandable why a judge would not want a “Tweetup” taking place during a trial.

An Interesting Order…No Twitter in Court

Cameras in Courtrooms have been the cannon fodder for courtroom sketches for years.  A recent court order for a trial in Florida highlights how judges are keenly aware of technology and reporters.

 A temporary press room was set up for reporters covering a criminal trial.  The reporters would be allowed to bring their “cellular phones, Blackberries, iPhones, Palm Pilots, and other similar electronic devices, as long as they agree in writing to not email, text message, twitter, type or otherwise use those devices inside any courtrooms within this District.” United States v. UBS AG, 2009 U.S. Dist. LEXIS 67270, 3-4 (S.D. Fla. July 9, 2009), (emphases added).

The short and simple message of this order is very clear: Judges are savvy to technology, Web 2.0 journalism and are including these portable ESI generating machines into their orders for the press.  I also would bet good money judges are including similar instructions to jurors.